Watson v The Queen
[2011] VSCA 422
•16 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0711
| RICHARD JAMES WATSON | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WARREN CJ, ASHLEY and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 October 2011 | |
DATE OF JUDGMENT: | 16 December 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 422 | |
JUDGMENT APPEALED FROM: | R v Watson [2009] VSC 261 (Whelan J) | |
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CRIMINAL LAW – Evidence – Consciousness of guilt – Post offence lies and conduct – Applicant convicted of murdering wife – Applicant claimed wife killed by intruders – Applicant made various claims hypothesising about identity of person(s) responsible for murder – Prosecution alleged conduct and claims constituted evidence of consciousness of guilt – Whether Edwards direction required with respect to alleged false claims purportedly identifying responsible person(s) – Application for leave to appeal refused – R v Chang (2003) 7 VR 236, discussed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M J Croucher | Lethbridges |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
Introduction
The applicant, Richard James Watson, was convicted of murdering his wife, Anne Lorraine Watson. He was also convicted of three counts of arson — setting fire to a house and two vehicles belonging to the Watsons.
The applicant seeks leave to appeal against his conviction on two grounds (grounds 2 and 3), both relating to the consciousness of guilt directions given by the learned trial judge. Two other proposed grounds of appeal (ground 1 and 4) were abandoned.
The applicant also sought leave to appeal against his sentence. At the hearing of the application, the Court warned the applicant that he faced the possibility of the Court imposing a sentence that is more severe than his original sentence. The applicant then withdrew his application for leave to appeal against sentence.
For reasons that will follow, in my view the applicant fails to make out either of the two remaining proposed grounds of appeal against conviction.
Relevant facts
The applicant and his wife married in 1972. They had a daughter, Caroline, who died in 1993 due to a congenital heart defect.
Mrs Watson’s parents ran a pet food factory in Pyramid Hill, Victoria. In late 1999, Mrs Watson’s father asked the applicant to come to Pyramid Hill to assist in the running of the factory. The applicant agreed, moved to Pyramid Hill and soon became the manger of the business. But the business did not prosper. In March 2001 it was placed into administration and was eventually taken over by new owners.
The applicant made some enemies during his time at Pyramid Hill. In early 2001 Mrs Watson received a threatening letter. Police investigated the matter but the author was never identified. The applicant claimed that the he and his wife later received three further threatening letters. In June 2001 a pet food factory worker poured acid on the applicant’s car due to a dispute about overtime.
Since late 2000 the Watsons had been living in a house in Pyramid Hill that they had purchased from Mrs Watson’s mother. At approximately 2:30am on 16 July 2003 the fire brigade was called to attend a fire at the house. The CFA arrived to find the house well ablaze. Vehicles belonging to the applicant and Mrs Watson were also on fire. The applicant was found lying on the back lawn, apparently unconscious. He smelled of kerosene. Mrs Watson’s body was found inside the house. Her body had a stab wound and strangulation injuries. A pathologist opined that Mrs Watson was already dead at the time the fire had started. Expert evidence suggested that the house and the vehicles were lit using a flammable liquid.
The defence case — not that the applicant had to prove anything — was that the applicant was attacked by intruders and rendered unconscious. It was the intruders who killed Mrs Watson and set the house and the vehicles on fire. The defence did not specifically single out particular persons as the perpetrators but claimed that there were many people associated with the applicant who could have had a reason to harm him.
The prosecution case was that the applicant was in serious financial difficulties. His employment as manager of the factory ended on 30 June 2001 and he remained unemployed at the time of Mrs Watson’s death. Mrs Watson worked part-time as a food technical assistant. The prosecution case was that the applicant killed his wife and set fire to the house and the vehicles to claim insurance. The applicant then lay on the lawn and pretended to be unconscious. No intruders were involved.
From the time of his wife’s death until the trial, the applicant had always maintained that he had been attacked by intruders. But in various conversations he had expressed a variety of different views as to who he thought was responsible for his wife’s death. He gave many conflicting accounts of the detail of what happened that night. The defence argued that these differences were largely explicable by the fact that the applicant was known to be an exaggerator, a man ‘loose with detail’. The prosecution alleged that the whole intruders story was simply a lie.
A second lie relevant to this appeal is the applicant’s explanation for why Mrs Watson’s ATM cards were in his wallet after the fire. The applicant told the police that his wife never used her cards due to a phobia of ATMs. Instead, he carried her cards in his wallet most of the time. The prosecution led evidence that Mrs Watson did use her cards. The prosecution claimed that the applicant’s explanation was a lie.
Ground 2
Ground 2 states:
The learned judge erred in his directions to the jury on lies, behaviour and consciousness of guilt and the applicant’s defence.; and in particular he erred:
(a)in leaving it to the jury to determine whether or not they considered the applicant’s alleged lie that there were intruders who rendered him unconscious was so significant a part of their reasoning towards guilt as to require proof beyond reasonable doubt of the matters relied on the by prosecution as evincing consciousness of guilt;[1]
(b)in failing instead to instruct the jury that, unless they could exclude beyond reasonable doubt the truth of the applicant’s assertion that he was attacked by intruders, not only could they not use that alleged lie as evidence of consciousness of guilt but the applicant must be acquitted.
[1]Citations omitted.
The learned trial judge left three matters to the jury as alleged evidence of consciousness of guilt:
1.the applicant allegedly feigning unconsciousness;
2.the applicant’s allegedly false story that he was attacked by intruders;
3.the applicant’s alleged lies about Anne Watson’s use of ATM cards.
His Honour then gave the jury a standard Edwards[2] direction. Ground 2 takes issue with the following passage from that direction:[3]
Now, when I instructed you about inferences earlier, I told you that you must not draw an inference that is adverse to the accused without being satisfied it is the only reasonable inference open in the circumstances. Well, this rule is very important in this context: namely, when you are considering an inference to be drawn from the way the accused acted or lied after the crime was committed. If the inference that Mr Watson has implicitly admitted responsibility for the crimes which are alleged against him here forms a significant part of your reasoning towards his guilt or provides a significant reason for you concluding that he is guilty of that crime, then you must be satisfied that the prosecution has proven each of the matters I have just taken you through beyond reasonable doubt. That is, you must be satisfied beyond reasonable doubt that the accused lied or acted in the way alleged by the prosecution; that any lies told were deliberate; that the lie or the act related to a significant circumstance connected with the offence; and was done due to the accused knowing or believing he had committed the crime and believing that by telling the truth or not acting in the way he did, he would be implicated in it.[4]
[2](1993) 178 CLR 193.
[3]Trial Transcript, 2239–2240.
[4]Emphasis added.
Ground 2 also alleges error in another passage of the direction, that followed shortly afterwards:[5]
If you view the inference that Mr Watson implicitly admitted responsibility for the crime as being of such significance that your reasoning about his guilt will be influenced or may be influenced by it, then you must be satisfied that the prosecution has proven each of those matters beyond reasonable doubt.[6]
[5]Trial Transcript, 2241.
[6]Emphasis added.
The applicant’s counsel at trial did not take any issue with this direction.[7] But in this Court the applicant now contends that the direction was incorrect and inadequate insofar as it applied to the intruders story. The applicant submits that the intruders story was central to his defence. It constituted the defence explanation of Mrs Watson’s death. The applicant submits that it was ‘gravely misleading’ to instruct the jury that ‘it was a matter for them whether they considered a significant part of their reasoning towards guilt that the applicant had lied about the intruders’. This, the applicant submits, ‘completely undermined’ the requirement that the intruders hypothesis had to be excluded beyond reasonable doubt before the Crown case could succeed.[8]
[7]Trial Transcript, 2251.
[8]Applicant’s Outline of Submissions (13 September 2010), [20].
Rather, the applicant submits, the judge ought to have instructed the jury that, unless they could exclude beyond reasonable doubt the truth of the intruders story, not only could the jury not use that alleged lie as evidence of consciousness of guilt but they must acquit the applicant.[9]
[9]Ibid [19] (original emphasis).
I accept that the intruders story was central to the applicant’s defence and he could not be found guilty unless the story was excluded beyond reasonable doubt. However, the direction did not leave the jury to determine if the falsity of the intruders story was a significant part of their reasoning towards guilt. Rather, the direction left it to the jury to determine if consciousness of guilt reasoning based on the falsity of that story formed a significant part of their reasoning towards guilt. Such consciousness of guilt reasoning did not need to form a significant part, or indeed any part, of the jury’s reasoning towards guilt.
The applicant submits that the jury could have understood the direction as meaning that they could convict the applicant without first being satisfied beyond reasonable doubt that the intruders story was false. They could have understood it to mean that if they found that the intruders story was probably false, although they were not satisfied beyond reasonable doubt that it was false, all other evidence put together may be enough to convict the applicant.
I reject that submission. In my view, his Honour’s charge made it absolutely crystal clear that the intruders story had to be excluded beyond reasonable doubt.
His Honour told the jury that:
1.the prosecution has to prove each element of murder beyond reasonable doubt;[10]
2.the jury must not draw an inference adverse to the applicant unless it is the only reasonable inference open on the evidence;[11]
3.the prosecution must eliminate all reasonable hypotheses consistent with innocence.[12]
[10]See, eg, Trial Transcript, 2202, 2215.
[11]See, eg, Trial Transcript, 2217, 2222, 2224, 2228.
[12]See, eg, Trial Transcript, 2220, 2224.
Further, his Honour specifically informed the jury that the defence was putting the intruders story as a reasonable alternative hypothesis[13] and directed that they ‘must acquit [the applicant] if they find his alternative scenario to be reasonable in the light of the evidence’.[14]
[13]Trial Transcript, 2226.
[14]Trial Transcript, 2228.
At the end of his charge, when summarising the parties’ submissions, the learned trial judge again told the jury that they ’have to be satisfied there is no other reasonable hypothesis than guilt before [they] could find the accused man guilty’.[15] Shortly afterwards, the trial judge again put to the jury the intruders story as a specific alternative scenario advanced by the defence.[16]
[15]Trial Transcript, 2384.
[16]Trial Transcript, 2384–2385.
The direction that the applicant now complains about was a general direction about consciousness of guilt. It related to all three matters that his Honour told the jury may constitute evidence of consciousness of guilt — feigning unconsciousness, the intruders story, and the alleged lies about Mrs Watson’s ATM card use. His Honour had earlier directed the jury that before they could use a lie or conduct to infer consciousness of guilt, they had to be satisfied of the Edwards preconditions.[17] The falsity of the lie is only one of these preconditions. It is unrealistic to suggest that because the direction permitted the jury, in limited circumstances, to draw a consciousness of guilt inference without being satisfied of the Edwards preconditions beyond reasonable doubt, and the falsity of the intruders story was one of the Edwards preconditions for one of the alleged lies, that the jury could have understood this direction as permitting them to convict the applicant without being satisfied that the intruders story had been excluded beyond reasonable doubt.
[17]Trial Transcript, 2235.
The applicant also seems to put his submission in a different or alternative way. He accepts that normally the Edwards preconditions, including the falsity of the alleged lie, do not have to be proved beyond reasonable doubt before the lie can be used as evidence of consciousness of guilt. However, the applicant submits that because in this case the falsity of the intruders story was indispensable for a finding of guilt, it was not permissible to use the intruders story as evidence of consciousness of guilt without being satisfied beyond reasonable doubt that the story was false. Yet, the applicant submits, his Honour’s direction permitted the jury to do just that.
I reject that submission. Once it is accepted that the jury understood that they had to be ultimately satisfied beyond reasonable doubt that the intruders story is false before they could convict the applicant, why should the jury not be permitted, subject to the usual requirements, to use an intermediate finding that the intruders story is probably false — a finding on the balance of probabilities only, yet to be confirmed to the criminal standard — as a basis for consciousness of guilt inferences? The only answer seems to be the risk that such inferences could be circular.
For the sake of argument I will I accept that a theoretical possibility of circular reasoning arises if, first, the prosecution relies on an allegedly false statement made by the accused as evidence of consciousness of guilt; secondly, the falsity of the statement is indispensable to a finding of guilt and therefore needs to be established beyond reasonable doubt; and thirdly, the jury draws consciousness of guilt inferences from the falsity of the statement without first being satisfied beyond reasonable doubt that the statement is false.
This theoretical risk can be illustrated by the facts of the case. If the jury, being satisfied of the falsity of the intruders story to a less than criminal standard, were to reason that the falsity of the story shows that the applicant believed that he was guilty, and this in turns shows that the intruders story was false, such reasoning would, of course, be circular and erroneous.[18] There may be cases where there is a real risk of the jury engaging in such circular reasoning. In such cases it would be necessary to direct the jury that they must not draw any consciousness of guilt inferences from an alleged lie unless satisfied beyond reasonable doubt that the alleged lie is indeed false. But this is not such a case. In this case, the circularity of an inference like the one I have set out above is plain.
[18]In contrast, a legitimate inference would be that the applicant’s belief that he was guilty makes it less likely that there is some other innocent explanation (apart from the intruders story) for Mrs Watson’s death and the fire.
Further, his Honour’s direction limited the circumstances in which the jury could use consciousness of guilt reasoning without first being satisfied of the Edwards preconditions beyond reasonable doubt. The first part of the direction stated that the Edwards preconditions need to be proved beyond reasonable doubt if a consciousness of guilt inference formed a ‘significant part’ of the jury’s reasoning towards guilt. The second passage went further and stated that the jury had to be satisfied of the Edwards preconditions beyond reasonable doubt if the jury’s reasoning about the applicant’s guilt ‘will be influenced or may be influenced’ by consciousness of guilt reasoning. In my view the passage went beyond the Edwards requirements and was therefore unnecessarily favourable to the defence. The second passage in effect required the jury to be satisfied of the Edwards preconditions beyond reasonable doubt if a consciousness of guilt inference was at all material to the jury’s reasoning towards guilt. Given these limitations, the only scenario in which the jury could have engaged in erroneous circular reasoning would be if:
1.being satisfied that the intruders story was false to a less than criminal standard, the jury decided to draw a consciousness of guilt inference from the falsity of that story;
2.the inference that the jury decided to draw was circular;
3.despite the second, more restrictive, passage of the direction, the jury considered that so long as the inference did not form a ‘significant part’ of their reasoning towards guilt, they could draw it without being satisfied of the Edwards preconditions beyond reasonable doubt; and
4.the jury considered that the inference did not form a ‘significant part’ of the reasoning towards guilt.
Common sense dictates that such an analysis by the jury would be tortuous. In my view, this scenario is simply far-fetched, even fanciful.
I consider that ground 2 is not reasonably arguable.
Ground 3
Ground 3 alleges that the learned trial judge erred by failing to give an Edwards direction with respect to the applicant’s alleged attempts to falsely implicate others in the death of his wife.
After closing addresses, the learned trial judge discussed his proposed consciousness of guilt directions with counsel.[19] It was agreed that the only matters in respect of which an Edwards direction would be given were (1) the applicant allegedly feigning unconsciousness, (2) the alleged lie about intruders, and (3) the alleged lie about Mrs Watson’s ATM card use. The applicant’s counsel before us frankly conceded that all other alleged lies were, by agreement, treated as relevant only to credibility. The applicant now submits that in addition to these three matters, in her closing address the prosecutor had also invited the jury to draw consciousness of guilt inferences from the applicant’s alleged attempts to falsely blame other people for the death of his wife.[20] The applicant submits that the learned trial judge should have given an Edwards direction in respect of these alleged lies.[21]
[19]Trial Transcript, 2206–2210.
[20]Applicant’s Outline of Submissions (13 September 2010), [22]–[23].
[21]Ibid [24].
I accept the applicant’s submission that although the prosecutor did not use the words ‘consciousness of guilt’ in relation to the alleged false blaming of others, she did in fact invite the jury to draw consciousness of guilt inferences. She told the jury that that the applicant was ‘running around telling other people in town, you might think to try and exculpate himself in their eyes’ that other people were responsible for his wife’s death.[22] She suggested to the jury that the applicant was trying to ‘blame somebody else’, ‘blame everyone’, to ‘deflect’ the blame from himself.[23] She also invited the jury to reason that the applicant did not inform the police of the allegations he was making against various people he claimed were responsible for the killing of his wife because he knew that he himself was the killer:[24]
But if there was any truth in that, any substance to any of that, why didn't he ring the police up and tell them? Why wouldn't he do that? Why wouldn't you? If you thought that someone had been responsible for your wife's death, why would you not be ringing those who were investigating it? Why wouldn't you be doing that? If you really thought there was something to it. Well, you know what the answer is: of course, you wouldn't be doing that if you were the one responsible for it yourself. Of course, you're not going to.
[22]Trial Transcript, 2018 (emphasis added).
[23]Trial Transcript, 2028, 2094.
[24]Trial Transcript, 2094 (emphasis added).
True it is that the part of the prosecutor’s address that dealt with the false blaming of others was directed substantially to the question of credibility of the applicant’s intruders story. Hence, the prosecutor pointed out the inconsistencies in the various versions of the intruders story told by the applicant.[25] She also suggested that the people whom the applicant blamed for the killing had unchallenged alibis and had no motive for killing her.[26] However, in my view, in addition to these credibility inferences, the parts of the prosecutor’s closing address that I have referred to were clearly inviting the jury to draw consciousness of guilt inferences.
[25]Trial Transcript, 2092–2093, 2095.
[26]Trial Transcript, 2030, 2093, 2097.
Further, the prosecutor referred to the false blaming of others as a piece of ‘circumstantial evidence’ against the applicant.[27] Yet, as the applicant points out, in R v Renzella[28] the Court held that ‘it is a misdirection, in a case where lies go only to credit, to tell the jury that they form part of the Crown’s circumstantial case’.[29]
[27]Trial Transcript, 2018.
[28][1997] 2 VR 88.
[29]Ibid 91.
Hence, the trial judge would have ordinarily been required to give an Edwards direction with respect to the alleged false blaming of others. Had there been no other directions about consciousness of guilt, the trial judge would have certainly needed to give an Edwards direction in that respect. However, the trial judge gave the jury an extensive direction in relation to consciousness of guilt. In my view this direction was sufficient and removed any need for an additional Edwards direction in relation to the false blaming others. This is so for two reasons.
First, his Honour’s direction required the jury not to draw any consciousness of guilt inferences from the alleged false blaming of others. His Honour specifically identified three matters as the only matters from which the jury was permitted to draw consciousness of guilt inferences.[30] Blaming others was not one of these matters. His Honour then told the jury that any other alleged lies went only to credibility:[31]
Remember it is only the lies that I have just mentioned that may be used to show that the accused implicitly admitted responsibility for these alleged crimes. You must not use any other lies in this way. Other lies, if you consider them to be lies, such as the two or three heart attacks or the many other matters about which [the prosecutor] submitted the accused has lied, can be used only, if at all, in relation to the accused’s credibility.
[30]Trial Transcript, 2233.
[31]Trial Transcript, 2234.
As this Court has made clear, ‘[o]ur system of justice assumes, as it must, that juries obey instructions given to them by trial judges’.[32] There is nothing in the circumstances of this trial to suggest that the jury may have misunderstood or disobeyed this clear direction.
[32]R v Halliday (2009) 23 VR 419, [81]. See also Gilbert v The Queen (2000) 201 CLR 414, [13] (Gleeson CJ and Gummow J), [31]–[32] (McHugh J, dissenting), [51] (Hayne J, dissenting).
Secondly, the learned trial gave a comprehensive Edwards direction with respect to the other alleged lies. The direction informed the jury that:
1.they must not ‘reason that just because a person is shown to have lied about something, he must be guilty’;[33]
2.before they could use an alleged lie as evidence of consciousness of guilt, they must be satisfied of the Edwards preconditions, explaining in detail what these preconditions were;[34]
3.‘people lie for all sorts of reasons’, including ‘panic, shame, in order to protect another person, or out of fear of unjustified allegations;.[35]
4.specifically to this case, the defence position was that the accused sometimes told ‘tall stories’ because he was an exaggerator.[36]
[33]Trial Transcript, 2230–2231.
[34]Trial Transcript, 2235–2236.
[35]Trial Transcript, 2236.
[36]Trial Trasncript, 2236.
The direction not only explained the generic aspects of the Edwards direction but put to the jury the specific defence explanation for the applicant’s inconsistent stories in which he blamed others for his wife’s death. An Edwards direction with respect to the alleged false blaming of others would have added little, if anything. I am reinforced in this view by the fact that the applicant did not identify, at trial or before this Court, any specific item of information or guidance that the Edwards direction he is now seeking would have told the jury that they did not already know.
The applicant placed considerable reliance on the decision in R v Chang.[37] The facts of Chang may at first glance appear to be on all fours with this case. In Chang the trial judge gave a full Edwards direction with respect to one alleged lie and directed that any other lies or conduct could not be used as evidence of consciousness of guilt. The Court of Appeal (Charles JA with whom Ormiston JA and Cummins AJA agreed) held that the trial judge erred by failing to give an Edwards direction with respect to other alleged lies and post-offence conduct.
[37](2003) 7 VR 236 (‘Chang’).
However, a close analysis of Chang suggests that the decision involved unique circumstances. First, the Court considered that ‘although the prosecutor did not actually use the words “consciousness of guilt”, both his opening and closing addresses would have left the jury in no doubt that the prosecution was relying on the accused’s post-offence conduct and lies to show that his awareness of his guilt directed his actions’.[38]
[38]Ibid [47].
Secondly, the post-offence conduct of Mr Chang had the appearance of being extremely incriminating. Over the course of several days, Mr Chang took elaborate and bizarre steps to distance himself from the death of the deceased, dispose of the body and flee. Mr Chang was caught preparing a grave, with the deceased’s body in the boot of his car. He had with him acid and lime, ostensibly for the disposition of the body. When intercepted by a police officer, Mr Chang assaulted the officer and fled. The Court of Appeal considered that this ‘behaviour is likely to have been viewed by the jury as shouting his guilt to the four winds’.[39]
[39]Ibid [46].
Thirdly, the true probative value of the conduct was significantly lower than its highly incriminating appearance suggested. Mr Chang ultimately admitted killing the deceased. He claimed that he had hit the deceased in self-defence and she then fell and hit her head on a wooden arm rest. Any consciousness of guilt inferences therefore required the jury to first exclude the possibility that Mr Chang’s post-offence conduct could have been explicable by fear of unjustified allegations of murder, that is, a fear that although in truth he killed the deceased in non-culpable circumstances, his explanation of the death would be disbelieved by police.
It followed in Chang that in the absence of careful and clear directions, there was a grave danger that the jury would misuse the evidence of post-offence conduct. But the Court held that the directions given by the trial judge were deficient in two respects. Although the trial judge’s direction attempted to limit consciousness of guilt reasoning to a particular lie, the wording of the direction was not sufficiently clear. The Court considered that the direction ‘may well have left the jury in some uncertainty as to which activities of the accused they were expressly obliged not to use in considering consciousness of guilt’.[40] This problem was ‘compounded by the fact that the judge immediately (after the luncheon break) moved to direct the jury on circumstantial evidence and to what the prosecution said was the “calculated attempt to hide and divert attention from [the deceased’s] death and his involvement in it”. The jury had, therefore, been told just before lunch that they were not entitled to use the accused’s “conduct” as evidence of consciousness of guilt, but, immediately afterwards, that it was entitled to take all of this evidence into account as part of the Crown’s circumstantial case’.[41]
[40]Ibid [46].
[41]Ibid.
Chang was a case where there was a particularly high risk that the jury would misuse the evidence of post-offence conduct unless properly and carefully directed.
This constellation of circumstances in Chang is not present in this case. The false blaming of others does not ‘shout’ consciousness of guilt in quite the same way as being found trying to hide the body of the deceased. Further, here the applicant denied playing any part in his wife’s death, which is quite different from a case where the defence is that the accused killed the deceased in non-culpable circumstances. Even leaving these matters aside, there are two key factors that made it unnecessary to give an Edwards direction with respect to the false blaming of others. First, unlike Chang, the directions in this case would have left the jury in no doubt that the alleged false blaming of others could only be used for credibility purposes. Secondly, the Edwards direction given in respect of other lies covered the
same ground that would have been covered by an Edwards direction with respect to the false blaming of others. I have already explained these factors.
For these reasons, I conclude that the trial judge’s direction was sufficient to remove any real risk of the jury drawing inappropriate consciousness of guilt inferences from the false blaming of others.[42] Ground 3 is not reasonably arguable.
[42]I say ‘inappropriate’ inferences rather than ‘any’ inferences because I note that the applicant does not suggest that the manner in which the prosecutor conducted her address required the jury to be discharged. Nor does he suggest that the learned trial judge should have done more to ensure that the jury did not draw any consciousness of guilt inferences from the alleged false blaming of others. Rather, the applicant’s complaint is that the trial judge should have given an Edwards direction with respect to the blaming of others. That complaint seems to pre-suppose and accept that the jury was entitled to draw consciousness of guilt inferences from the blaming of others, provided that they were told of the Edwards preconditions and warnings.
Disposition
I would dismiss the application for leave to appeal against conviction.
I would further add that I agree with the circumstantial analysis and conclusions reached by Ashley JA in his judgment which I have read in draft. There is much attraction in his Honour’s concise and simple ‘strands in a cable’ approach.
ASHLEY JA:
What follows was written before I had the opportunity of studying in draft the reasons for judgment of Warren CJ. I respectfully agree with them, and have nothing to add to what her Honour has written about ground 3. Concerning ground 2, I proffer this short analysis.
The Crown’s case was a circumstantial one.
The judge correctly instructed the jury that it depended upon the drawing of inferences and that an inference adverse to the accused must not be drawn unless it was the only reasonable inference to draw from the facts.
The judge identified the circumstances relied upon by the Crown. There were 12 circumstances – although the prosecutor accumulated a greater number in her closing address.
The circumstances included what were said by the Crown to be two lies told out of consciousness of guilt, likewise one incident of post conduct behaviour.
The judge summarised the applicant’s position as being that the circumstances relied upon by the Crown went nowhere; and that, although the applicant had no obligation to prove any alternative hypothesis, he had in fact advanced a specific alternative hypothesis inconsistent with his guilt which, he asserted, could not be excluded.
In substance, it was the applicant’s alternative hypothesis that the killing and the arson were the acts of intruders, he having been rendered unconscious by their attack. He supported that hypothesis by reference to his unpopularity in the district, an unpopularity demonstrated by threatening letters which he had received in the period before his wife’s death, and also as demonstrated by an acid attack on his motor vehicle several years earlier.
It is the fact that, when fire fighters arrived at the scene, the applicant was found apparently unconscious in the backyard of his home; and that for a period thereafter he sustained apparent fits and fluctuating consciousness.
There was, however, considerable evidence that his apparent unwellness was feigned.
The judge directed the jury that it must acquit the applicant if it found his ‘alternative scenario to be reasonable in the light of all the evidence’. That was ‘because the burden is on the prosecution to exclude all reasonable hypotheses which are inconsistent with the accused’s guilt’.
The case was of the strands in a cable type. The judge told the jury that neither the Crown nor the defence submitted that any particular circumstance was essential or indispensable to the path to conviction.[43]
[43]If the common ground was correct, no piece of circumstantial evidence required a finding to the criminal standard.
Thus far, there could be no complaint, and there was no complaint, about the judge’s charge.
The Crown relied upon three matters to indicate consciousness of guilt. The first was what was said to be the applicant’s feigned unconsciousness and fitting. The second was what was claimed to be a false story of intruders having rendered him unconscious. The third was an account which he gave about his wife’s use of credit and debit cards.
The first and second of those matters went directly to the applicant’s exculpatory hypothesis. The third was unrelated to it.
The judge directed the jury, both with respect to the conduct and each of the alleged lies, that the same must have been engaged in or told, that it was deliberate, that it related to a significant circumstance or event connected with the crime under consideration, and that it was done or said out of a belief of guilt – though not of the particular crime as legally defined.
His Honour’s directions were strictly in accordance with Edwards v The Queen.[44] Counsel for the applicant rightly accepted that Edwards does not require that the facts from which the inference is drawn be established to the criminal standard. As for the inference itself, the judge repeated that it must be the only reasonable inference open in the circumstances.
[44](1993) 178 CLR 193.
His Honour told the jury, correctly, that the implied admission constituted by a lie or other post offence conduct told or done in consciousness of guilt does not equate with proof of guilt. He directed the jury that, at most, it would show that the applicant believed he was guilty. Again, this part of his directions was in accordance with principle.
Having explained to the jury that an inference adverse to an accused must not be drawn unless it was the only reasonable inference available, his Honour then applied that to the Crown’s consciousness of guilt contentions. He said this –
If the inference that Mr Watson has implicitly admitted responsibility for the crimes which are alleged against him here forms a significant part of your reasoning towards his guilt or provides a significant reason for you concluding that he is guilty of that crime then you must be satisfied that the prosecution has proven each of the matters I have just taken you through beyond reasonable doubt.
and
If you view the inference that Mr Watson implicitly admitted responsibility for the crime as being of such significance that your reasoning about his guilt will be influenced or may be influenced by it, then you must be satisfied that the prosecution has proven each of those matters beyond reasonable doubt.
His Honour’s reference ‘these matters’ was a reference to the applicant having lied or acted in the way alleged by the Crown, to his having done so deliberately, to the lie of conduct relating to a significant circumstance related to the offence, and to its having been told or done in consciousness of guilt.
Notwithstanding these directions, which went beyond what Edwards itself requires, counsel for the applicant submitted in this Court that the judge erred because he did not mandate that the Crown must establish each step in any of its consciousness of guilt contentions to the criminal standard.
It was submitted also that the failure of trial counsel to take exception was not an impediment to the success of the point; and that the proviso to s 568(1) of the Crimes Act 1958 could not save the conviction.
The alleged lie concerning the deceased’s use of her credit and debit cards may be put to one side. That is because counsel’s argument focussed upon the correspondence between, on the one hand, the applicant’s exculpatory hypothesis and, on the other hand, the Crown’s reliance upon two aspects of that hypothesis as evidence of an implied admission of guilt.
As I understand it, counsel contended that the judge’s direction that the jury must acquit if it could not exclude a reasonable hypothesis inconsistent with the applicant’s guilt was incompatible with a direction which admitted of the possibility that the jury would find only on balance of probabilities that he engaged in conduct and/or told a lie which was/were inferred (as the only reasonable inference available) to have been done and told in consciousness of guilt.
It is highly improbable that the jury reasoned to guilt by focussing upon acceptance or rejection of the alternative hypothesis. The logical path of reasoning was that, by reference to a plethora of circumstantial evidence not dependent upon lies told or conduct engaged in by reason of consciousness of guilt, the applicant was guilty. The by-product of that reasoning would have been that the alternative hypothesis must be excluded.
But suppose that the jury had begun by considering the alternative hypothesis. It had been told that it must acquit if the Crown had not excluded a reasonable hypothesis inconsistent with guilt. It had also been told that if any particular circumstance was essential or indispensable to a finding of guilt, then there must be satisfaction of that circumstance to the criminal standard. So, if the jury considered that rejection of the alternative hypothesis was essential or indispensable – or even ‘central’[45] – to conviction, in order to convict it must have been satisfied beyond reasonable doubt that there had been no intruders and that the applicant had not been rendered unconscious.
[45]As the judge once put it.
Then suppose, improbably, that the jury had resolved that proof of the applicant’s guilt depended upon proof of the implied admissions by reason of the conduct and/or lie upon which the Crown relied. Those circumstances, according to the judge’s direction, must have been established to the criminal standard. It was only if the jury had not considered those circumstances to be essential, or indispensable, or central, to conviction that the judge’s directions permitted them to
be found to the lesser standard; and in the postulated situation, that would not have been permissible.
Finally, suppose a fourth situation: that the jury reasoned to guilt by reference to all the circumstances relied upon by the Crown – that is, including the impugned conduct and the alleged lie. It had been directed that the alternative hypothesis could not be excluded if there remained a reasonable possibility that the applicant’s account was correct. It cannot be sensibly thought, in my opinion, that the jury would have understood, in the circumstances last mentioned, that in order to reject that hypothesis it was enough to find, to a lesser standard of proof, that a lie had been told or conduct engaged out of consciousness of guilt. The possibility that the jury might have so reasoned, depending upon the detailed analysis of the language of the charge undertaken by applicant’s counsel, can in my opinion be dismissed.
HARPER JA:
I respectfully join with the Chief Justice and Ashley JA, whose judgments I have had the advantage of reading in draft, in concluding that the application for leave to appeal against conviction should be dismissed. In the light of the difficulties identified in the analysis of ground 2, however, I wish to add a word of my own.
It is a truism that a mere denial of guilt (which, of course, could only be shown to be a lie by proving the prosecution case) cannot be used as an implied admission of guilt.[46] There must be evidence that a statement is a lie before it can be left to the jury as a possible implied admission of guilt. If the only way that the Crown can prove that a statement is a lie is by satisfying the jury of the guilt of the accused, the statement cannot be used in this way.[47]
[46]The Queen v Gionfriddoand Faure (1989) 50 A Crim R 327 (Court of Criminal Appeal of the Full Court of Victoria).
[47]R v Laz [1998] 1 VR 453; R v Russo (2004) 11 VR 1; R v Sirillas [2006] VSCA 234.
While it is not a truism, there is another proposition which in the
circumstances of this case is both relevant and sound. It is that the jury should not be confronted with unnecessary difficulties. Thus, while directions to a jury should be kept as simple as possible, so too should the prosecution case eschew points which, while making that case much more complicated, do little if anything to advance it.
It seems to me that the argument on ground 2 illuminates these points. As the Chief Justice has stated at [27] of her reasons for judgment, the jury ‘had to be ultimately satisfied beyond reasonable doubt’ that the ‘intruders’ story is false before they could convict the applicant. In other words (to adapt the phraseology of [81] above), the only way that the prosecution could prove to the satisfaction of the jury that the ‘intruders’ story was a lie was by satisfying them that the applicant was guilty. Accordingly, the Crown had no need to rely upon the lie as consciousness of guilt. Indeed, on the authority of Laz, Russo and Sirillas it ought not to have done so.
That reliance having been manifested, however, there was no simple way to explain to the jury how they could approach their evaluation of the ‘intruders’ story without falling into inappropriate ‘boots strap’ reasoning. For the reasons given by the Chief Justice and by Ashley JA, I am of the opinion that the explanation given by trial judge in the course of his charge was sufficient to ensure that the danger of false reasoning would be avoided. The complaint made under ground 2 that the judge erred in his directions to the jury is therefore not made out.
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