Xypolitos v The Queen
[2014] VSCA 339
•18 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0201
S APCR 2014 0049
| JOHN XYPOLITOS | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | REDLICH, TATE and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 September 2014 |
| DATE OF JUDGMENT: | 18 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 339 |
| JUDGMENT APPEALED FROM: | R v Xypolitos (Unreported, Supreme Court of Victoria, Curtain J, 6 September 2013) |
---
CRIMINAL LAW – Murder – Appeal against conviction – Whether trial judge’s failure to give a direction about a ‘mixed statement’ containing inculpatory and exculpatory material constituted a substantial miscarriage of justice – R v Rudd (2009) 23 VR 444 – Whether direction conveyed that jury bound to give exculpatory statements less weight – R v Mule (2005) 79 ALJR 1573, R v Tunja [2013] VSCA 174, followed – Weight to attribute to various parts of the ‘mixed statement’ made clear by judge’s comprehensive charge.
CRIMINAL LAW – Murder – Right to silence – Post-offence conduct – Whether applicant’s failure to mention the victim’s death to police or others could be regarded as implied admission demonstrating consciousness of guilt – R v Russo (2004) 11 VR 1 as qualified by R v Cuenco (2007) 16 VR 118, distinguished.
CRIMINAL LAW – Jury Directions Act 2013 ss 10, 11, 13, 14 – Obligation of counsel to request directions – Act extends common law obligation – No temporal limitation on counsel’s duty to request particular directions – R v Wright (1999) 3 VR 355, affirmed – Section 11 renders a failure to seek a direction at trial fatal to an appeal point unless it can be shown under s 15 that the judge was obliged to give that direction – Judge’s residual obligation to give directions unsought by counsel narrower than at common law – Judge must have concluded that the failure to give the direction would cause the trial to miscarry and vitiate any resulting conviction – Appeal court must determine whether trial judge should have so concluded – Meaning of ‘substantial miscarriage of justice’.
CRIMINAL LAW – Murder – Leave to appeal against sentence – Applicant sentenced to 27 years’ imprisonment with a non-parole period of 24 years – Whether manifestly excessive – Applicant in effect the victim’s stepfather – Victim killed with hammer – No premeditation – Post-offence conduct involving dismemberment and concealment of victim’s body – Continued denial over a very protracted period of any knowledge of circumstances surrounding victim’s disappearance – No remorse – Substantial sentence justified by lack of guilty plea and by post-offence conduct – Application for leave to appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Kassamatis | Victoria Legal Aid |
| For the Crown | Mr T Gyorffy QC | Mr C Hyland, Solicitor for Public Prosecutions |
JOHN XYPOLITOS V THE QUEEN
REDLICH JA
TATE JA
PRIEST JA:
Introduction
Following a trial in the Supreme Court, the applicant was convicted of murder. He was sentenced to be imprisoned for 27 years, and a non-parole period of 24 years was fixed. He seeks leave to appeal against conviction and sentence.
The conviction appeal raises the following issues. First, whether the trial judge erred in giving, and failing to give, directions concerning a statement containing inculpatory and exculpatory matters made by the applicant to an undercover police officer. Second, as the Jury Directions Act 2013 (‘the Act’) applied to this trial, the question also arose as to whether the trial judge was obliged to give the direction the subject of complaint. Third, whether the Crown, in breach of the right to silence, relied improperly upon the applicant’s failure to report the death of the deceased to police during the course of their lengthy investigation as to the deceased’s whereabouts. Fourth, whether the directions failed to adequately distinguish between conduct that could be used as evidence of guilt and conduct which went only to the applicant’s credit.
For the reasons that follow, we would grant leave to appeal and dismiss the appeal.
Overview
Jo-Ann Adams, the victim’s mother, had been in a relationship with the applicant since 1998. As a result of that relationship, the victim, Gary Adams, was in effect the applicant’s stepson.
In June 2003, the victim turned 17 years of age. Although his mother’s relationship with the applicant was coming to an end, the three continued to live together. By December 2003 it had been mutually agreed between the applicant and Jo-Ann Adams that the applicant would leave the house in January 2004 to live elsewhere. The victim was aware of this arrangement.
The victim was described as being tall and slender. He wore glasses for a squint and spoke with a lisp. His interests included skateboarding, ice hockey and BMX bike-riding. He and the applicant had in earlier years had a good relationship, but by 2003 the relationship was not a happy one. The applicant admitted to police that he was a disciplinarian and he tended to belittle his stepson.
The victim told friends that he did not like that the applicant was not his father. There had, he said, been arguments between the two of them. On at least two occasions violence had been involved. In order to avoid conflict, the victim came to an arrangement with his mother that he would spend two or three days a week away from home.
On Friday, 5 December 2003, shortly before 6.00pm, Jo-Ann Adams came home from work. The applicant was preparing the evening meal. She asked if her son was home. Falsely, the applicant told her that he had gone out. Her son was, however, dead. The applicant had killed him.
Ms Adams gave evidence that there was nothing out of the ordinary about the applicant’s demeanour that night. That evidence was confirmed by her sister, Michelle Crichton, who visited the house later that night.
The following morning, Saturday, the victim’s mother had a quick look into the victim’s room and saw that he was not there. She tried to contact him on his mobile telephone later that evening but the phone rang out. By the following Monday night, Ms Adams had become very concerned about her son, and made a number of calls to his friends and to his father. She reported him to the police as missing on the Wednesday, and was told to see whether he came home for Christmas. She continued to make inquiries. The applicant drove her to places in search of him.
In April 2004, it was agreed between Ms Adams and the applicant that the applicant would leave the house they shared as an incentive for the victim’s return. All the while, of course, the applicant knew that the son of Ms Adams would never return.
The Missing Persons Unit of Victoria Police investigated the disappearance. In October and December 2004, the applicant made two statements to police. He told police that the victim had come home on the Friday afternoon to fix the chain on his bike. The applicant said he gave the lad the keys to the shed to get some tools, and that the victim had then gone out again. He also falsely told the police that he was not responsible for his stepson’s disappearance.
In May 2008, the applicant was again spoken to by police. In a recorded interview he admitted that he had been ‘a mongrel to Gary’ and maintained that the victim had last been seen by him working on his broken bike chain.
Late in 2010, Ms Adams was at a public function where Detective Senior Sergeant Ron Iddles of the Victoria Police’s Homicide Squad was the guest speaker. She spoke to him of her concerns about the state of the investigation into her son’s disappearance. Detective Iddles obtained the police file. He briefed Detective Senior Constable Hunt of the Homicide Squad, who commenced a further investigation.
In March 2011, Detective Iddles again interviewed the applicant, who again denied any involvement in Gary Adams’ disappearance.
Police, however, persisted. On 12 April 2012 the police obtained admissions from the applicant that he had killed Gary Adams on 5 December 2003. He claimed, however, that he had killed him in self-defence. The applicant also admitted that on the following day he had dismembered the victim’s body and disposed of it.
The applicant was arrested, taken to the offices of the Homicide Squad and interviewed. He told police that he was ‘under a lot of stress at the time, not thinking, obviously’.
Investigators excavated the ground beneath a shed at the applicant’s mother’s home. A number of fragments of human skeletal remains were found. At the applicant’s trial, by a notice to admit, the applicant admitted that the remains were those of Gary Adams.
As part of the case against him, the prosecution principally relied upon the applicant’s confession to the undercover operative. It also relied upon evidence which was said to demonstrate a less than amicable relationship between the applicant and the victim, and lies and post-offence conduct capable of amounting to implied admissions that the applicant had killed the deceased with murderous intent and not in self-defence.
The applicant relied upon an exculpatory portion of his recorded conversation with the undercover operative to support his defence of self defence. He said to the operative that he did what he did ‘in the heat of the moment,’ that the deceased ‘just probably grabbed a screwdriver,’ that he had ‘tried to stab’ the applicant ‘with the screwdriver’ but did not actually hit him with it. It was in those circumstances, the applicant had asserted, that he grabbed a hammer and swung out with it, hitting the deceased to the head two to three times.
Appeal against conviction
The applicant relies on the following grounds of appeal:
1. A substantial miscarriage of justice was occasioned by the trial judge’s:
(a)direction that ‘[a]s a matter of common human experience it is normally relatively unlikely that an innocent person would implicate himself in a crime … [and] that oral statements admitting involvement in a crime can amount to very strong evidence of guilt’; and
(b)failure, properly or at all, to direct the jury that, when considering evidence of a ‘mixed statement’ or a statement which is part inculpatory and part exculpatory, it is for them to decide what weight they attach to each, and to consider the possibility that what was said was true.
2A.A substantial miscarriage of justice was occasioned by the Prosecution’s impermissible reliance upon, and the trial judge’s endorsement of, the Applicant’s silence as capable of amounting to incriminating evidence.
2B.A substantial miscarriage of justice was occasioned by:
(a)the trial judge’s direction that evidence revealing on the part of the Applicant lies or conduct not capable of, or relied upon as, amounting to incriminating conduct fell to be considered by the jury as part of the ‘overall evidence in the case’; and
(b)a failure on the part of the trial judge to direct the jury properly or at all that lies or post-offence conduct which was incapable of, or not relied upon as, evidencing incriminating conduct could be used only for the limited purpose of assessing the Applicant’s credibility.
3. The trial miscarried as a consequence of the cumulation of some or all the errors and matters pleaded in Grounds 1, 2A and 2B.
The Jury Directions Act 2013
Counsel for the applicant at trial neither took exception to the impugned direction in 1(a), or sought the further direction in 1(b), that it is now said should have been given.
This was one of the first trials conducted under the Act. The provisions of the Act now govern the circumstances in which a direction must be given in a trial.
One of the stated purposes of the new legislation is to ‘clarify that it is one of the duties of legal practitioners appearing in criminal trials to assist the trial judge in deciding which jury directions should be given’.[1] This purpose is repeated in s 8, which introduces Part 3 of the Act relating to requests by counsel for directions.
[1]The Act s 1(d).
At common law, counsel have always been obliged to take appropriate exception where required to a judge’s charge. Thus, in R v Wright[2] this Court said:
It is time to affirm with emphasis that it is the obligation of counsel at the trial (for the prosecution as well as the defence) to take objection to matters which are prejudicial to the fair trial of the accused and that the failure to take exception presents a serious obstacle to the raising of such matters on appeal. This case stands as a warning not only that defence counsel who fail to take appropriate exceptions are in breach of their obligations both to their clients and the court, but also that the failure to take exception may prevent the issue being raised on appeal.[3]
[2](1999) 3 VR 355.
[3]Ibid 356. See also R v Caine (1990) 48 A Crim R 464, 475; R v Roberts (2001) 53 NSWLR 138.
The Act does not diminish the obligations of counsel which previously existed, but extends them. The Act broadens counsel’s duty to the court and as the parties’ legal representatives. The trial judge must be informed by counsel as to the directions that are required in order that the accused receive a fair trial according to law. Any failure by defence counsel to comply with the obligations under the Act potentially affects the rights of an accused on appeal.
Sections 10 and 11 are in these terms:
10 Defence counsel must inform trial judge of matters in issue
After the close of all evidence and before the closing address of the prosecution, defence counsel must inform the trial judge whether the following matters are or are not in issue –
(a) each element of the offence charged;
(b) any defence;
(c)any alternative offence, including an element of any alternative offence;
(d)any alternative basis for complicity in the offence charged and any alternative offence.
11Legal practitioners must request that particular directions be given or not given
After the matters in issue have been identified in accordance with section 10, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of –
(a) the matters in issue; and
(b) the matters in the trial relevant to the matters in issue.
Sections 13 and 14 relieve the judge of the need to give directions not requested and oblige the judge to give the requested directions regarding matters in issue.
Sections 13 and 14 provide:
13Trial judge need not give direction that relates to matter not in issue or not requested
The trial judge need not give the jury a direction that —
(a)relates to a matter that defence counsel has indicated under section 10 is not in issue; or
(b) has not been requested under section 11.
14 Trial judge must give requested directions
(1)The trial judge must give the jury a requested direction unless there are good reasons for not doing so.
(2)In determining whether there are good reasons for not giving a requested direction to the jury, the trial judge must have regard to—
(a) the evidence in the trial; and
(b)the manner in which the prosecution and the accused have conducted their cases, including—
(i)whether the direction concerns a matter not raised or relied on by the accused; and
(ii)whether the direction would involve the jury considering the issues in the trial in a manner that is different from the way in which the accused has presented his or her case.
Section 15 requires the trial judge to give a direction not sought by counsel in certain circumstances. It provides:
15 When trial judge must give direction regardless of parties’ views
(1)Despite sections 13 and 14, the trial judge must give the jury any direction that is necessary to avoid a substantial miscarriage of justice even though –
(a) the direction relates to a matter that defence counsel –
(i) has indicated under s 10 is not in issue; or
(ii) has omitted to indicate under s 10 is in issue; and
(b) the prosecution or defence counsel –
(i) has requested under s 11 that the trial judge not give the direction; or
(ii) has omitted to request under s 11 that the trial judge gave the direction.
The applicant initially contended in his written case that trial counsel was not required under the Act to inform the judge of the matters now the subject of complaint. It was said that ss 13, 14 and 15 of the Act were inapposite, as the ground of appeal relies primarily upon a misdirection rather than ‘only on a failure to give a direction’. That distinction was without substance. Upon testing that submission on the appeal, counsel, who did not appear at the trial, rightly resiled from it. As ground 1 states on its face, the applicant relies upon the failure to give a direction, albeit that it only became necessary because of a misdirection. Second, the initial submission reflects a misunderstanding of the extent of the duty which the Act imposes on trial counsel when an erroneous direction is given.
Section 10 identifies the point in the trial at which counsel must assist the judge in identifying the issues. Upon the issues having been identified, counsel’s duty is enlivened, to request particular directions with respect to matters in issue, or relevant to matters in issue. From that time onward counsel has a continuing obligation to inform the judge of any directions that are required. There is no temporal limitation on counsel’s duty. It subsists for the remainder of the trial. If matters emerge in the parties’ closing addresses that require a direction not previously identified as necessary, they must be drawn to the judge’s attention. If the judge in his or her charge fails to give a direction that was anticipated, including any of the general directions,[4] counsel is obliged to identify the need to do so. If the judge misdirects the jury in the course of the charge, the obligation to take exception remains. Where a misdirection occurs, the need for a further direction to correct it will ordinarily arise. There is thus no material distinction to be made between a non-direction and a misdirection. In either event the Act obliges counsel to identify the direction that is required and request the necessary direction be given. This ongoing duty is consistent with, and reflective of, the common law obligation imposed on counsel to take any necessary exception to matters raised in the charge. That duty is now subsumed within the continuing duty which subsists until verdict to identify any necessary direction that should be given.
[4]See Jury Directions Act 2013 s 3.
The asserted misdirection and further direction said to be necessary in the subject trial were relevant to matters in issue, namely the applicant’s mens rea and the existence of a defence. Trial counsel was obliged by s 11 to have identified the error, if it be a misdirection, and to have requested the direction necessary to remedy it. His failure to do so would be fatal to the applicant’s submission that there was an irregularity in the trial process unless it could be shown that the judge was required by s 15 to have given the further directions, whether requested or not, as they were necessary to ‘avoid a substantial miscarriage of justice’.
Once counsel accepted on the hearing of the appeal that s 11 of the Act did apply, he contended that notwithstanding that trial counsel had not requested the further direction, s 15 required the trial judge to give the direction as it was necessary to avoid a substantial miscarriage of justice. He contended that the Act had not altered the obligation at common law to give a direction where it was necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.[5]
[5]See Longman v The Queen (1989) 168 CLR 79, 86; Bromley v The Queen (1986) 161 CLR 315, 319, 323-5; Carr v The Queen (1988) 165 CLR 314, 330; Robinson v The Queen (1999) 197 CLR 162, 168-9; Tully v The Queen (2006) 231 ALR 712.
In R v Miletic,[6] this Court explained the common law obligation as follows:
We readily acknowledge that there are rules prescribing the directions that a judge must give in particular classes of case. The warning required with respect to the evidence of an accomplice is a familiar example. But such rules should not be unduly expanded. A trial judge should retain the flexibility to deal with the almost infinite range of factors that affect criminal trials. Where there is no specific rule, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice.
There are four aspects of that general principle that we desire to mention. First, we emphasise the words ‘necessary and practical’ and ‘perceptible’. A perceptible risk is one that is real or of substance, as opposed to a risk that is insignificant or theoretical. Secondly, we are speaking of directions that require the authority of the judge’s office. The factors calling for the warning must be of such a character that it is unsafe to leave the jury to rely on the arguments of counsel. Thirdly, an appellate court will attach weight to the judge’s assessment of what was required and, in appropriate cases, will infer from counsel’s not taking an exception that the direction in question was not required. Fourthly, the consequences of failure to give the direction will depend upon whether, in the event, there has been a miscarriage of justice.[7]
[6][1997] 1 VR 593.
[7]Ibid 605 (Winneke P, Charles and Callaway JJA).
This formulation has been applied and refined in subsequent years. The ultimate question was whether ‘such a direction was necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice’.[8]
[8]R v Kotzmann [1999] 2 VR 123, 146–7; Sumner v The Queen (2010) 29 VR 398, 403. See also Rich v The Queen (2014) 312 ALR 429, 475; R v Ciantar (2006) 16 VR 26, 66–8.
The legislature has now given statutory expression to the residual obligation of the trial judge. The legislature has chosen not to use the common law formulation of ‘a perceptible risk of miscarriage’. Under the common law, it was sufficient to enliven the residual duty that the judge identified a (real) risk of miscarriage. Whereas the common law test was a test of prudence — requiring that ‘perceptible risks’ be eliminated — the test under s 15 is one of necessity to ‘avoid a substantial miscarriage of justice’.
The statutory regime directly addresses the circumstances where a trial judge fails to give a particular direction that is relevant to an issue in the case, either because a party or the parties have said they do not require it, or because of an oversight by the parties and the judge. In either circumstance, s 15 requires the trial judge to give that direction, if it is ‘necessary to avoid a substantial miscarriage of justice’. Where it is submitted on appeal that the trial judge erred in failing to give the direction, the question is whether the trial judge ought to have formed the view that it was necessary to give the direction to avoid a substantial miscarriage of justice. If not, there was no error and the ground of appeal must fail.
A miscarriage of justice may arise from a failure to give a necessary direction either because it constitutes an irregularity in the trial or a serious departure from the prescribed processes for trial. But the phrase ‘substantial miscarriage of justice’ in s 15 cannot bear the same meaning as it has in s 276 of the Criminal Procedure Act 2009. The test, for the purpose of s 276, imports the jurisprudence discussed in Baini v The Queen[9] that is applicable to the appellate task.Its meaning in that context cannot inform the trial judge’s task. It is to be remembered, in the appellate context, that for the purpose of s 276(1)(b) and (c) ‘a substantial miscarriage of justice’ may be affected by the strength of the prosecution case at trial. The evidence properly admissible at trial may require the conclusion that a verdict of guilty was inevitable. The jury’s guilty verdict may bear upon the question.[10] It is not the function of a trial judge to undertake that sort of evaluation of the evidence. Section 15 does not require the judge to anticipate how the jury will view critical witnesses, or make an assessment of the strength of the evidence, or attempt to predict how the jury will resolve particular issues. The legislature did not intend a trial judge to undertake the task of trying to predict how the Court of Appeal might view the absence of a particular direction in the light of the jury verdict.
[9](2012) 246 CLR 469.
[10]Ibid; Andelman v The Queen (2013) 38 VR 659..
But the use of the same phrase as appears in s 276 does serve to emphasise the stringency of the s 15(1) obligation. That is, before the obligation is enlivened the judge must have concluded, having regard to the issues, that the direction is of such importance that a failure to give it would — not might — cause the trial to miscarry and vitiate any resulting conviction. It follows that the s 15 obligation was intended to be reserved for those cases where — despite counsel’s submissions or the lack of them — the test of necessity is satisfied.
Accordingly, the scope of that obligation falls to be determined as a matter of the construction of the language of s 15(1) within the context of this statutory regime. The obligation in s 15 is said to arise ‘despite sections 13 and 14’ and ‘even though’ the giving of the direction would be contrary to the submissions made by trial counsel under ss 10 and 11. As ss 13 and 14 make clear, it is those submissions of counsel which are the primary source of the obligation of the trial judge to give directions (subject to the residual obligation under s 15). Section 13 expressly relieves the trial judge of any obligation to give a direction which counsel have not requested, or which relates to a matter which the defence have indicated is not in issue. To the same effect is s 14, which makes it obligatory for the trial judge to give a requested direction ‘unless there are good reasons for not doing so’. By so providing, the legislature has given a clear indication that counsel will in most circumstances determine what the issues in the trial are and how they should be addressed by way of directions. The language of s 15(1) thus expressly draws attention to the scheme of Part 3 and the onus which the legislature has squarely placed on trial counsel to take responsibility for defining the issues in the trial and identifying those directions which should, or should not, be given. That is the context in which the provision must be interpreted
We also note that the purposes of the Act set out in s 1 include the following:
(c)to simplify and clarify the duties of the trial judge in giving jury directions in criminal trials; and
(d)to clarify that it is one of the duties of legal practitioners appearing in criminal trials to assist the trial judge in deciding which jury directions should be given.[11]
[11]Emphasis added.
Section 15(1) must be interpreted consistently with those statements of purpose, and in a way which reinforces the clear intent of ss 10–11 and 13–14. Our conclusion in this regard is consistent with the following statement in the Second Reading Speech:
The ‘substantial miscarriage of justice’ test is deliberately different from the existing ‘fair trial’ test. In almost all cases, whether a direction is requested or not will be the key factor in determining whether a direction is given or not given.[12]
[12]Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 32 (Robert Clark, Attorney-General) (emphasis added).
The statutory regime reveals, in our view, a discernible intention on the part of the legislature that the obligation should be narrower in scope than its common law predecessor. The task that s 15 requires of a trial judge and an appellate court, considering its operation, has been altered. Now, before the obligation arises, the judge must be positively satisfied that the direction in question is necessary to avoid a substantial miscarriage of justice. It requires a state of affirmative satisfaction by the trial judge that the direction is of such central importance to one or more issues in the trial that, if the accused is convicted, a failure to give the direction will have occasioned a miscarriage of justice. If the circumstances, considered objectively, did not require such a conclusion, the failure to give the direction would not have amounted to an error in the trial. The trial judge, applying formulations such as that of Barwick CJ in R v Storey,[13] must be satisfied that in the absence of the direction, the appellant will have lost a ‘real chance of acquittal’, or that had the direction been given ‘a reasonable jury might well have acquitted.’[14]
[13](1978) 140 CLR 364.
[14]Ibid 376.
The appellate court must determine whether the trial judge should have concluded that the direction was necessary. Should it have been recognised that the failure to give the direction was likely to be productive of a substantial miscarriage of justice? The necessity for the trial judge to have given the further direction raised by ground 1 must be determined on this basis.
Ground 1 is concerned with the manner in which the applicant’s confession to the undercover operative, ‘Gary Butcher’, was treated in the charge. It was not in issue on the appeal that it was a ‘mixed statement’[15] of inculpatory and exculpatory parts. The applicant at trial relied upon the truth of the entirety of his account to support his defence of self-defence. The Crown case was that the inculpatory portion of the account in which the applicant admitted to having killed the deceased was true. As to the exculpatory part, the Crown contended that there was very little evidence giving rise to the claim that the deceased had tried to stab him with the screwdriver, that it was a ‘throw away line’ and a ‘lame’, ‘flimsy’ and ‘self-serving excuse’, lacking detail and at odds with what the jury had learned about the character of the deceased; and that the allegation was false, and was confirmed to be so when the applicant did not raise the issue of self-defence in the police interviews. The prosecutor submitted further that even if the victim had come at the applicant with a screwdriver, it would not sensibly have left open the prospect that the applicant believed on reasonable grounds that it was necessary to act as he did.
[15]R v Rudd (2009) 23 VR 444.
The applicant’s written case set out the impugned direction to the jury in the following terms:
As a matter of common human experience it is normally relatively unlikely that an innocent person would implicate himself in a crime or that an innocent person would make an untruthful statement contrary to their interests. It has been said that oral statements admitting involvement in a crime can amount to very strong evidence of guilt in some circumstances.
Although it was not referred to in the applicant’s written case, the sentence that precedes the impugned passage is not without importance:
As to what was said to Gary Butcher, the Crown rely upon what the accused said as an admission by him to the crime of murder, but before you can act upon it as such you must be satisfied that it was said and it was the truth.
This was a conventional Burns[16] direction, required when the prosecution relies upon a confession or admission. Her Honour then repeated the same direction again immediately following the impugned direction. It explains why the trial judge said what she did in the impugned passage. She said:
[B]efore you can rely on evidence as an admission or a confession you must be satisfied that the accused said it and you must also be satisfied that it is true.
[16]Burns v The Queen (1975) 132 CLR 258.
The applicant submits that this direction caused the trial to miscarry. First, it is argued that the jury must have understood the above remarks as conveying a binding direction of law, as it was bookended by directions about the jury needing to be satisfied beyond reasonable doubt that the applicant’s admissions had been made and were true before relying on them.[17] The Crown but faintly suggested that the jury would not have so understood the direction. The question arose in Tunja v The Queen[18] as to whether such a direction, given in a very similar context to the present, would have been understood to be a question of law. Although dissenting on another issue, Priest JA in his reasons in Tunja[19] set out compelling reasons why it would have been so understood.
[17]Ibid 261.
[18][2013] VSCA 174 (‘Tunja’).
[19]Ibid [73]–[77].
It was accepted on the appeal that in accordance with authority it would have been preferable if the impugned direction had not been given. As to the first sentence of the impugned direction, the High Court said in Burns v The Queen:[20]
[O]bservations of this kind, although they may explain the rational basis for the use of confessional evidence, do not provide any useful guide as to the manner in which such evidence may be used by a jury, and if repeated to a jury would be likely to mislead them.
[20](1975) 132 CLR 258, 262.
In Mule v The Queen,[21] a videotaped interview had been tendered as evidence by the prosecution at trial. The appellant did not give evidence at trial and relied upon the exculpatory assertions he had made during the videotaped interview. In summing up, the trial judge observed that the appellant’s assertions that the tablets found in his possession were for personal use, although disclosed in evidence by the prosecution’s tender of the videotape, were not sworn testimony. The trial judge said that the jury could therefore accord less weight to the assertions. The plurality observed that any direction which conveys to the jury ‘that, as a matter of law, they were bound to give less weight to some parts of what was said … than to others … would have been a misdirection’.[22] But the jury may be instructed that they may consider that parts of the assertions should be given less weight. The Court said:
An observation by the trial judge that the appellant’s out of court assertions, although disclosed in evidence by the prosecution’s tender of the video tape, was not sworn testimony, that, unlike, the admissions, they were not against the appellant’s interests, and that the jury could give them less weight than the admissions, was proper …
As an observation on the facts, in the circumstances of this case, it was not inappropriate to point out that, while the admissions of possession were accepted by both sides at the trial to be true, the assertions about purpose were in dispute, that they were not supported by any sworn testimony and that they were self-serving. It would also not have been inappropriate to point out that the jury might think them to be of less weight than the admissions …
The summing-up, considered as a whole, made it sufficiently clear that ultimately, this was a question for the jury, and the jury alone.[23]
[21](2005) 79 ALJR 1573 (‘Mule’).
[22]Ibid 1580 [24].
[23]Mule (2005) 79 ALJR 1573, 1578–9 [21]–[22], 1580 [25].
The first sentence of the impugned direction was the subject of the appeal in Tunja, where an almost identical direction had been given.[24] The joint reasons of Maxwell P and Weinberg JA dealt with the question whether the trial judge’s statement of the rationale for the reception of evidence of admissions was productive of a miscarriage of justice. They referred to the importance of reading the direction in the context of the summing-up as a whole and in light of the issues at the trial in concluding it was not productive of a miscarriage of justice. They said:[25]
Error having been conceded, the appellant bore the ultimate burden in this Court of establishing that inclusion of the impugned statement in the charge was productive of a ‘substantial miscarriage of justice’. We are not persuaded that it was.
A misdirection of this kind may be — but is not necessarily — productive of a miscarriage of justice. Whether there has been a miscarriage is to be assessed by considering the misdirection in the context of the trial as a whole —including, in particular, the issues litigated in the trial — and the importance (or otherwise) of the misdirection in that context. No issue was raised in the appellant’s trial about whether the admissions — if made — were true. The only matter put in issue concerning the admissions was the prior question of whether the Crown had proved that the appellant had made the admissions.
[24][2013] VSCA 174.
[25]Ibid [3]–[4] (citations removed).
The joint reasons in Tunja then referred to the passages from the plurality reasons in Mule in these terms:[26]
[26]Ibid [12]–[18] (citations removed) (emphasis added, emphasis in original removed).
The Court cited with approval McLure J’s endorsement, in the West Australian Court of Criminal Appeal, of the comments of Thomas J in Cox. Those comments were to the effect that it was ‘undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement’. In the cited passage from Cox, Thomas J went on to say this:
There is, of course, no reason why the trial judge should not point out that such [exculpatory] statements have not been made on oath and (where appropriate) that they have not been tested by cross-examination. He may explain the traditional reasons why admissions against interest are commonly regarded as reliable evidence, and make any appropriate comments about particular parts of the evidence. The weight which may fairly be accorded to a self-serving statement varies so much from case to case that it is unwise to lay down any general disparaging directions concerning such statements, although of course, critical comments may be made in appropriate cases.
The High Court in Mule gave qualified endorsement to this passage, as follows:
Apart from the words emphasised in that passage, it is a sound guide to jury direction. In view of the long-standing controversies about why admissions are received, and in view of the fact that an admission need not have been against interest at the time it was made, it is undesirable to direct juries along the lines suggested by the words emphasised.
Finally, their Honours said this:
The appellant’s alternative submission to this Court is that, in the present case, what the trial judge said in the paragraph in question amounted to an erroneous instruction of law. The paragraph contains some obvious hesitations, and some internal corrections. It is wrong to read it by overemphasising one fragment of it. It is necessary to read it as a whole and in context. If so read, it had conveyed to the jurors that, as a matter of law, they were bound to give less weight to some parts of what was said to the police than to others, then it would have been a misdirection. (Whether it would have involved a miscarriage of justice is another matter. In this case no jury, acting reasonably, could have failed to discriminate, in terms of weight, between the admissions as to the identity of the tablets and as to possession and the assertions as to purpose.) As the judge said in the same paragraph, as he told the jury at the commencement of the trial, and as he said again later in his summing-up, it was for the jury, and the jury alone, to decide what weight to give particular parts of the evidence. There is some internal inconsistency in the paragraph, but it is impossible to accept that the jury would have been left with the erroneous impression claimed by the appellant. This conclusion is reinforced by the consideration that experienced trial counsel made no complaint at the end of the summing-up.
It is important to examine why the High Court in Mule considered it undesirable for a trial judge to ‘explain the traditional reasons why admissions against interest are commonly regarded as reliable evidence’. In their Honours’ view, giving such an explanation was undesirable because of the ‘long-standing controversies about why admissions are received, and in view of the fact that an admission need not have been against interest at the time it was made’. The court in Mule was concerned that — in the context of the particular case — such an explanation had the potential to engender confusion in the minds of the jury as to how to deal with a combination of exculpatory assertions and admissions, a matter that had long been viewed as troubling.
Of particular relevance to the present appeal is that the High Court stressed the importance of not over-emphasising one fragment of a trial judge’s charge. ‘It is necessary to read it as a whole and in context’. If the judge’s statement had conveyed to the jurors that, as a matter of law, they were bound to give less weight to some parts of what was said to the police than to others, it would have been a misdirection. But — and this is of pivotal importance — the Court went on to say that it was ‘another matter’ whether such a misdirection would have involved a miscarriage of justice. That was so because, in their Honours’ view, ‘no jury, acting reasonably, could have failed to discriminate, in terms of weight’ between the exculpatory assertions and the admissions. The jury had been told repeatedly that it was for them, and them alone, to decide what weight to give particular parts of the evidence. Moreover, that conclusion was reinforced by the consideration that experienced trial counsel made no complaint at the end of the summing up.
It follows from Mule that a misdirection may, or may not, amount to a miscarriage of justice. Whether a particular misdirection has that consequence is to be assessed taking into account the context in which it occurs. The whole of the charge must be considered, and it must be considered in the light of the manner in which the trial was conducted. Logically, even a finding that there had been a miscarriage of justice would not determine the outcome of an appeal. The statutory requirement in this State is that this court be satisfied that the ‘error’ (assuming such error be found to have been committed) gave rise to a ‘substantial miscarriage of justice’.
The joint reasons in Tunja, including their observations about Mule, were the subject of specific approval by Crennan and Bell JJ in refusing an application for special leave.[27]
[27][2014] HCATrans 89 (11 April 2014).
The second sentence of the impugned passage that admissions ‘can amount to very strong evidence of guilt in some circumstances,’ was capable of being understood as an instruction as to a matter of law, but if so, there was no error in it. It was not an a priori general statement about the weight that should be attached to inculpatory statements. It carried no invitation to the jury that they should so treat the inculpatory statements in this case. It did not constitute a misdirection. Even if it should be so characterised, it could not have been productive of a miscarriage.[28] The impugned direction could have served no purpose, as both parties were inviting the jury to accept the truth of the inculpatory statements. It was not in issue at the trial that the applicant had killed the deceased, or that he had done so by striking him to the head with a hammer.
[28]Mule (2005) 79 ALJR 1573, 1580 [24].
The applicant, however, further argues that the misdirection would have conveyed to the jury that his exculpatory statements were at law less reliable than the inculpatory statements, so that it became necessary for the judge to give the kind of direction referred to in R v Rudd regarding the weight which a jury can attribute to ‘mixed statements’[29] containing inculpatory and exculpatory parts.
[29]R v Rudd (2009) 23 VR 444, 448, 454–5 (Redlich JA); Tunja v The Queen [2013] VSCA 174, [2]–[4] (Maxwell P and Weinberg JA), [68]–[71] (Priest JA); Burns v The Queen (1975) 132 CLR 258, 261–2 (Barwick CJ, Gibbs and Mason JJ); cf Mule (2005) 79 ALJR 1573.
In R v Rudd, Redlich JA discussed the admission of a mixed statement containing both inculpatory and exculpatory parts as follows:[30]
Ordinarily, a statement which is purely exculpatory or self-serving is not evidence of the truth of its contents and is not admissible. The clear exception is usually expressed as follows. A self-serving statement will be admissible where it forms part of a mixed statement made before the accused is charged, which contains both inculpatory and exculpatory passages. Hence, where one party puts in evidence a statement made by the other, the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated. The genesis of the exception is the essential notion of ‘fair play’. The exception is identified in Cross as being that ‘when an admission is read, everything ought to be read which is fairly connected with that admission’. Thus a statement of the accused placed in evidence by the Crown becomes evidence for the accused as well as against him. The accused is not confined to passages of his statement that qualify or explain the admissions upon which the Crown relies.
It is for the jury to decide what weight they will attach to the exculpatory parts of the accused’s statement and to consider the possibility that what was said may be true. They may give different weight to different parts of the statement …
The passages from Mule to which I referred in Berry show that the trial judge here adopted a flawed approach to the impugned exculpatory statements. With respect, it was not correct to assume that any exculpatory parts of the applicant’s statements could carry no evidential weight, or that the jury would have to be so directed …
[30](2009) 23 VR 444, 453–5 (citations removed).
The applicant argues that the jury should have been given a Rudd direction, to the effect that when considering a mixed statement, it is for them to decide what weight they will attach to the inculpatory and exculpatory parts of that statement respectively, and to instruct them that it was open to them to accept the whole of the statement as true.
This aspect of ground 1 assumes that the impugned direction would have been understood by the jury to mean that they should give less weight to the exculpatory parts of the applicant’s statement as a corollary of an increased willingness to accept the truth of the inculpatory parts of the statement. Counsel for the applicant conceded that had the first error not occurred, the failure to give a Rudd direction would not have constituted a substantial miscarriage of justice. But the commission of the first error, it was said, rendered the giving of such a direction necessary.
That submission cannot be sustained. The primary factual questions in the trial, identified in the charge, were whether the applicant had the requisite murderous intent when he hit the deceased and whether he was acting in self-defence. The exculpatory statement to the undercover police operative was one of the primary facts bearing upon the resolution of those issues. The trial judge identified at length the evidence bearing upon those issues in the charge. It is convenient that we summarise the relevant parts of the comprehensive charge in order to show that the submission cannot be sustained that the jury would have been left with the erroneous impression that they should treat the exculpatory statements as having less weight.
Her Honour gave the jury a conventional direction that they had to decide the issues by reference to the whole of the evidence, including the audio visual recording of the applicant and the operative and a transcript of the conversation. The jury were instructed that it was for them to determine what evidence was acceptable and what weight to attach to any particular piece of evidence. They were told that it was for them to determine the extent to which that evidence helped them determine an issue. It was entirely a matter for them.
Her Honour reminded the jury that it was not disputed that the applicant caused the deceased’s death, as he admitted it in his conversation with the operative. If the jury were satisfied he said those things, and that they were the truth, they could act upon what he said. As to his intention, the jury were instructed that the Crown relied in part upon what the applicant had told the operative had occurred in the shed. The judge explained the Crown contention that it should be inferred from all of the evidence that the applicant intended to kill the deceased, and that the defence contended that in striking the deceased with the hammer the applicant was acting in the heat of the moment to the perceived threat when the deceased produced the screw driver.
As to the issue of self-defence, the jury were directed that it was not for the applicant to prove that he acted in self-defence but that, where the defence arises on the evidence, it is for the Crown to disprove it. That instruction was repeated in a number of ways. The jury were given detailed instructions that the Crown would have to prove that the applicant did not believe it was necessary to defend himself or that the belief was not based upon reasonable grounds. These questions were to be determined by reference to the circumstances as the applicant perceived them to be. The jury were then directed that they must take into account all of the circumstances as they found them to be in which the acts occurred. The jury were then reminded in detail of what the applicant said to the operative, and that it was a matter for the jury what the events were that afternoon. The jury were reminded that the Crown said that the applicant’s statement that the deceased grabbed a screwdriver was a gloss on what was otherwise reprehensible conduct. The jury were reminded of the defence submission that the applicant was reacting to an imminent threat, and the Crown’s competing contention that what the applicant did was disproportionate to any threat that he faced. The jury were also reminded of the defence argument that the applicant was really only saying in his statement to the operative that there was only one blow. The judge emphasised that the nature of the applicant’s actions was entirely a matter for the jury.
It was repeated a number of times that whether the acts constituted self-defence was a matter for the jury. The judge instructed the jury that the defence contended that the applicant had told the truth when he said that he had reacted spontaneously to the deceased producing the screwdriver, and that the Crown had not proved a murderous intent or disproved self-defence. At the conclusion of the charge, the judge again reminded the jury that it was for the Crown to disprove self-defence.
In summarising the parties’ closing submissions, the judge in her charge referred in detail to what each party had said about the exculpatory part of the statement to the undercover operative, and the competing arguments as to whether that statement could support self-defence. We have referred elsewhere in these reasons to the substance of the Crown argument. It need not be repeated. Her Honour summarised the evidence of the conversation with the operative, noting his evidence that he was seeking to make the applicant as comfortable as possible so that he would tell the truth. The summary of the defence submissions included reminding the jury that the applicant’s contention was that he did tell the truth as the operative elicited it from him and that the truthful account supported the issue of self-defence, which could not be discounted.
The entirety of her Honour’s directions concerning the exculpatory account made unmistakeably clear that there were no presuppositions as to what weight should be afforded to that evidence. The charge emphasised in numerous ways that it was a matter for the jury alone what weight they gave the applicant’s account and whether the Crown had disproved self-defence. Nothing that was said could have led the jury to the view that they were bound to give the exculpatory statements less weight. No part of the directions concerning the mixed statement was productive of a miscarriage of justice. That said, the jury, acting reasonably, could not have failed to appreciate that it was open to them to discriminate in terms of weight between the undisputed admissions that the applicant had killed the deceased by striking him to the head, and the applicant’s very limited and highly qualified assertion that the victim had grabbed the screwdriver and threatened the applicant.
It was undesirable that her Honour provided an explanation of the reason why admissions against interest are commonly regarded as reliable, but that did not amount to a misdirection. It has not been demonstrated that the failure to give a Rudd direction amounted to an irregularity. But in any event, the failure of counsel to request the direction in question was, under the new legislative regime, fatal to the applicant’s argument. We are not persuaded by the applicant’s submission, based upon s 15 of the Act, that if there be error, it was of such an order that the trial judge should have found it necessary to give the direction to avoid a substantial miscarriage of justice.
This was a contested murder trial in which the applicant had conceded the physical element of the offence. The issues were those of his mens rea and the availability of self-defence. The evidence of the content of the conversation with the undercover officer was critical to the determination of these issues. For the reasons we have given, the jury could not have been in any way confused about their right to use the statements made during that conversation as they saw fit. The instructions in the charge made it clear that it was entirely a matter for them how they might use that evidence. The applicant acknowledged in oral argument that the content of the suggested direction was so utterly obvious that there could never have been any need for it to have been given, had it not been for the misdirection complained of. The instructions about self-defence made clear that the truth of the entirety of the applicant’s exculpatory comments in the conversation with the undercover officer was a matter for them. No specific direction was needed to that effect. The message was implicit throughout the charge and the jury could not have failed to understand it.
For the reasons enunciated above, we do not accept that her Honour should have concluded that a Rudd direction was necessary to avoid a substantial miscarriage of justice. Therefore there was no irregularity. Ground 1 is not made out.
Grounds 2A and 2B — the applicant’s right to silence and the alleged misdirection as to lies and post-offence conduct
Before the commencement of the applicant’s trial the prosecution filed a document headed ‘Notice: Evidence of Incriminating Conduct’, dated 15 July 2013. In the Notice, the prosecution itemised the evidence which, when adduced, would be relied upon as amounting to admissions of guilt on the part of the applicant. Item 2(a) in the list was in the following terms: ‘The failure by the accused at any time to report to the police or any other person the death of the deceased in his presence’. That item was relied upon by the prosecution as evidence of incriminating conduct, and was endorsed as such by the trial judge in her directions to the jury. The trial judge directed the jury as follows:
You will appreciate that the evidence may reveal that there are other matters, conduct and statements which you may regard as lies by the accused, but it is only this particular evidence that I have made reference to which can be used by you as incriminating conduct amounting to an implied admission by the accused that he is responsible for the murder of Gary Adams. Any other evidence which you regard as revealing lies or lies by the accused or conduct designed to cover up the true position falls for your consideration as part of the overall evidence in the case, but it is only this particular conduct that I have relied upon which may be used by you as incriminating conduct to the extent that it amounts to an implied admission by the accused that he is guilty of the crime of murder, and that is that he dismembered the body, disposed of the body parts, buried the body parts, did not tell anybody that Gary Adams met his death in his presence and did not reveal the circumstances of Gary Adams’ death to anyone for eight and a half [years] until he spoke with Gary Butcher on 12 April 2012.
The applicant submits that this direction caused the trial to miscarry, for the following reasons.
First, it is argued that the circumstances in which silence in the face of a police investigation can amount to an admission are rare,[31] and that it was not open to the prosecution to invite the jury to treat the applicant’s failure to report the killing of the deceased to police as an implied admission. The trial judge, it was said, should not have lent her imprimatur to such a submission. Second, the applicant submits that his silence did not attract the ‘doctrine of adoptive admission’, as no accusation was made in his presence to which he might reasonably be expected to have responded.[32] Thus it was submitted that it was error to have instructed the jury that it could draw an adverse inference of guilt from the failure to report the death of the deceased. They should have been directed that such evidence bore only upon the credibility of the applicant’s account to police and the veracity of his claim that he acted in self-defence, and did not itself constitute evidence of the applicant’s guilt.[33]
[31]Citing R v Russo (2004) 11 VR 1, 2 (Winneke P), 11–12 (Nettle JA); cf Woon v The Queen (1964) 109 CLR 529; Brain v The Queen [2010] VSCA 172; R v Cuenco (2007) 16 VR 118.
[32]Citing R v MMJ (2006) 166 A Crim R 501, 516–17 [52]–[55] (Buchanan JA), 519 [64]–[65], 522 [85] (Ashley JA), cf 505–6 [18]–[19] (Warren CJ).
[33]Citing R v Russo (2004) 11 VR 1 (Winneke P); R v Renzella [1997] 2 VR 88, 91.
Further, the applicant submits that while the jury were directed in clear terms that they could treat only the post-offence conduct, specifically evidence identified by the trial judge, as incriminating evidence, they were given little or no instruction as to how to treat evidence of other post-offence conduct of the applicant. Complaint is made that they were not instructed that such other evidence bore only upon the applicant’s credit. The risk which thereby arose, it is submitted, is that the jury interpreted the direction extracted above as meaning that they could use such evidence as part of the overall case against the applicant, or as evidence of his guilt.
The last of these matters may be immediately disposed of. The trial judge dealt comprehensively with the evidence of each piece of post-offence conduct that was said by the Crown to support an inference of guilt. We do not accept that the instructions left open the risk that the jury could have used post-offence conduct that had not been so identified as evidence supporting an inference of guilt. Defence counsel saw no such risk and took no exception. This complaint is without merit.
If any of the impugned directions were in error, trial counsel was required by s 11 of the Act to request directions that remedied the error. This he did not do. As we have said in dealing with ground 1, the failure to request further directions would ordinarily be fatal. As we are of the view that there was no error in any of the directions the subject of complaint, it is unnecessary to consider further the consequence of counsel’s failure to take objection and request further directions.
We turn to the contention that the applicant’s right to silence precluded the drawing of any adverse inference of guilt. In R v Russo,[34] the applicant successfully appealed against his conviction for the murder of his parents. The Crown’s case had been entirely circumstantial, depending largely upon alleged lies and conduct on the part of the applicant which were said to be evidence of consciousness of guilt. Those lies and conduct included, relevantly, the applicant’s failure to mention to police during a number of very lengthy interviews in which he had provided a detailed account of his actions, that he had moved a small safe from its location near his father’s body, allegedly for the purpose of clearing the way for ambulance officers. The applicant argued that while the movement of the safe could be regarded as demonstrating consciousness of guilt, his failure to mention it to police could not be so regarded. Nettle JA agreed, quoting R v Smith, Ashford and Schevella,[35] to the following effect:
[T]his is just what the authorities to which we have a little earlier referred declare cannot be done. The use of a refusal to answer police questions after the customary warning as an aid to an assessment of an accused’s credibility is one thing. It is altogether another to employ the selection of question as those not to be answered as evidence of guilt. …
In the later case of [R v] Bruce, Gray J, speaking on behalf of the Court, after a discussion of the case law, said…that he came to the conclusion that ‘the weight of authority makes it clear that what is forbidden is the use of the accused’s silence, at least after a caution, as an admission which could itself provide evidence against him’.[36]
[34](2004) 11 VR 1.
[35](1990) 50 A Crim R 434, 457.
[36]R v Smith, Ashford and Schevella (1990) 50 A Crim R 434, 457; cited in R v Russo (2004) 11 VR 1, 11 (Nettle JA).
In R v Cuenco,[37] the proposition stated in Russo was clarified and qualified, it being implicitly recognised that Russo went too far. In Cuenco, Nettle JA stated as follows:
The law is that it is forbidden to use an accused’s silence, at least after caution, as an admission which could itself provide evidence against him. But that does not mean that the deliberate omission of facts from a statement made by an accused to police cannot ever be treated as indicative of guilt. An accused’s conscious omission of events from a detailed account that he provides may provide a basis for drawing an inference of a consciousness of guilt and, if an accused makes a positive statement to police that he cannot remember an event, or that he has no recollection of it or the details of it, it may well constitute evidence which in combination with other evidence is capable of amounting to evidence of consciousness of guilt.[38]
[37](2007) 16 VR 118 (‘Cuenco’).
[38]Ibid 124 (citations omitted).
The applicant’s reliance upon this line of authority in support of the contention that his failure to inform anyone of the death of the accused in his presence cannot be evidence of consciousness of guilt is misconceived. Both Russo and Cuenco dealt with circumstances in which it was the accused’s failure to mention certain facts to police during the investigative process that was in issue.[39] The applicant’s right to silence, and the prohibition against drawing adverse inferences from its exercise, does not extend beyond the investigative context where a caution is administered. There was nothing that stood in the way of an adverse inference being drawn from the applicant’s failure to inform anyone about the victim’s death or what he had done with the victim’s body. Furthermore, this was not a case of silence simpliciter.The applicant did not merely remain silent about what he had done. He told lies so that his involvement in the death would not be discovered. As Cuenco shows, once an offender provides a positive account of relevant matters within his knowledge, the fact that he omits other relevant facts may, depending upon the circumstances, support incriminating inferences.
[39]The same is true of Brain v The Queen [2010] VSCA 172, also cited by the applicant; see also Woon v The Queen (1964) 109 CLR 529.
On the hearing of the appeal, these conceptual obstacles were drawn to the attention of counsel. The argument was then narrowed, counsel only contending that no positive obligation existed for the applicant to report to police that he had killed the victim. In Mocenigo v The Queen,[40] the applicant advanced a similar argument that certain lies and post-offence conduct, including, relevantly, the failure to notify the police of the death of the victim in the applicant’s presence, along with the disposal of her body, could not constitute evidence of consciousness of guilt. Priest JA (Buchanan and Neave JJA agreeing) disagreed, stating that the lies and post-offence conduct in question were capable of use by the jury in determining whether the applicant had implicitly admitted involvement in the unlawful killing of the deceased.[41]
[40][2013] VSCA 231.
[41]Ibid [51].
It is right to say that there is no positive obligation upon an accused to confess. But where in the ordinary course of human affairs one would expect a person to inform others of an exceptional occurrence, the circumstances may permit the drawing of an adverse inference from the failure to do so. The applicant’s failure to inform others, such as family and police, who had an immediate interest in the whereabouts of the deceased, as to his death and the destruction and disposal of his body, coupled with the lies told about the deceased’s whereabouts, provided ample basis for the inference that his silence disclosed a realisation of his guilt of the crime charged amounting to an implied admission.
This ground of appeal fails.
The appeal against sentence
The applicant seeks leave to appeal on the ground that the sentence imposed was manifestly excessive, in that:
The learned sentencing judge placed undue weight upon the applicant’s post-offence conduct when assessing the gravity of the offence;
The learned sentencing judge erred in characterising the offence as a ‘particularly savage assault’; and
The learned sentencing judge erred in giving undue weight to specific deterrence.
The applicant, whilst acknowledging that his post-offence conduct was clearly aggravating, submits that her Honour placed undue weight upon that post-offence conduct in assessing his moral culpability. It is submitted that the offending itself, while serious, was not, as described by her Honour, ‘an extremely serious example of the most serious of offences.’[42] This is so, the applicant argues, because the offending was spontaneous, occurred quickly, and did not involve the kind of aggravating features which might have attracted a sentence of this order. The applicant cites Director of Public Prosecutions (Vic) v Borg,[43] in which the accused was resentenced on a Director’s appeal to 28 years’ imprisonment for murder.[44] In that case, this Court found that insufficient weight was attributed to the fact that the murder was a cold-blooded execution, planned well in advance and carried out for the purpose of protecting the profits from a significant criminal enterprise, after which the offender had brutally degraded the victim’s body in an attempt to conceal the crime.[45]
[42]R v Xypolitos (Unreported, County Court of Victoria, Curtain J, 6 December 2013) (‘Reasons’) [38].
[43][2013] VSCA 181 (‘Borg’).
[44]As well as a sentence of 12 months’ imprisonment for handling stolen goods, and three years’ imprisonment for cultivating a narcotic plant. The total effective sentence imposed on appeal was 28 years and nine months’ imprisonment.
[45]Borg [2013] VSCA 181, [20].
The applicant’s post-offence conduct was undeniably significant for sentencing purposes. The destruction and concealment of the victim’s body, the applicant’s continued denial over a very protracted period of any knowledge of the circumstances surrounding his disappearance, and his continued association with the victim’s mother including the search for her son, rendered this a particularly grotesque example of relevant, ongoing post-offence behaviour. The sentencing court was also justified in taking into account the grief and trauma which the deceased’s family suffered upon discovering the gruesome fate of their loved one’s remains.[46] There can be no doubt that the victim’s mother, in particular, must have been profoundly distressed by the revelation of the circumstances of the applicant’s disposal of the body.
[46]R v Kellisar [2001] VSCA 224, [7].
We reject the applicant’s contention that the judge erred in characterising the offending as a ‘particularly savage assault’. Although the attack itself was not of a lengthy duration, the manner in which it occurred was savage indeed, with the applicant deliberately aiming several blows at the victim’s head with a hammer, with the intention of causing catastrophic injuries.
We are similarly unconvinced by the argument that undue weight was given to specific deterrence. The applicant had only one prior conviction, dating back to 1993, but that conviction was highly relevant, involving as it did a violent and potentially life-threatening assault in a domestic context (the applicant fired a shot through the window of a home in which his ex-partner lived).[47] This fact, considered alongside the applicant’s lack of remorse and poor prospects of rehabilitation,[48] (both of which findings are unchallenged on this appeal), and the lack of any real discernible motive for the offending, renders her Honour’s reliance upon specific deterrence entirely appropriate.
[47]Reasons, [34].
[48]Ibid [39].
If the sentencing judge’s characterisation of the applicant’s offending as ‘an extremely serious example of the most serious of offences’ is taken to mean that the offending fell into the worst category of murders, then this is not so; this was not a case, like Borg, in which the murder was coldly premeditated and committed for reward. However, we are content to assume that her Honour did not mean that. The characterisation of this as an ‘extremely serious’ murder is, in our view, correct, given the youth of the victim, the applicant’s position of responsibility towards him, the brutal nature of the attack, the dismemberment of the deceased’s body and the protracted period of concealment of the applicant’s crime.
However, the applicant correctly submits that sentences of the magnitude of that imposed on him are generally reserved for the worst instances of murder. The median length of sentence for murder between 2007–8 and 2011–12 (not including sentences of life imprisonment) was 19 years, with the most common sentence 20 to less than 21 years.[49] An unpremeditated murder such as that committed by the applicant would, in the absence of the aggravating post-offence conduct, be expected to receive a sentence of that broad order, usually in a case where the offender has pleaded guilty. The question which then arises is whether the applicant’s substantially higher sentence is justified by the fact that he is not entitled to a discount for his plea of guilty, and by his post-offence conduct.
[49]Sentencing Advisory Council, Snapshot 140: Sentencing Trends for Murder in the Higher Courts of Victoria (2013) 4.
In our view, it cannot be said that the sentence was beyond a sound exercise of the sentencing discretion. It is established that post-offence conduct, including that involving mistreatment of a corpse, will certainly aggravate the offence of murder.[50] There is no question that the applicant’s conduct was abhorrent and warranted a significant increase in the sentence that should otherwise have been imposed. Moreover, the applicant is not entitled to any discount for a plea of guilty and has exhibited no remorse.
[50]See, eg, DPP (Vic) v England [1999] 2 VR 258.
We refuse the application for leave to appeal against sentence.
16
30
0