R v Manuel [2015] NSWSC 1562

Supreme Court New South Wales

Medium Neutral Citation: R v Manuel [2015] NSWSC 1562 Hearing dates: 12 October 2015 Date of orders: 12 October 2015 Decision date: 12 October 2015 Jurisdiction: Common Law Before: Campbell J Decision: The evidence of the accused's post-offending conduct is admissible Catchwords: EVIDENCE – admissibility – conduct post-offence - whether evidence can be used as consciousness of guilt by Crown – where it is open to jury to convict on murder or manslaughter Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Edwards v The Queen [1993] HCA 63; 178 CLR 193; Gall v R [2015] NSWCCA 69; Kuehne v R [2012] NSWCCA 270; R v Cook [2004] NSWCCA 52; R v Sievers (2004) NSWCCA 463; 151 A Crim R 426; Steer v The Queen (2008) NSWCA 295; 191 A Crim R 435; The Queen v Lucas [1981] Q.B. 720 Category: Procedural and other rulings Parties: Office of the Director of Public Prosecutions (Crown) Mr Dinky Gordon Manuel (Accused) Representation: Counsel: Mr P Lynch (Crown) Mr C Smith SC (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (Accused) File Number(s): 2013/138360

ex tempore judgment (revised) 1. Mr Manuel is charged on indictment with the murder of his friend, a Mr Rein said to have occurred on or about 30 April 2013 at Penshurst in the State of New South Wales. A jury is yet to be empanelled. I am asked to make a preliminary ruling in accordance with the provisions of s 192A Evidence Act 1995 (NSW) about the admissibility of evidence of post-offence conduct of Mr Manuel that the Crown will seek to tender before the jury. 2. Mr Manuel has entered a general plea of not guilty to the charge. However I am informed by Mr Smith of learned senior counsel who appears for him that there is no issue that Mr Manuel performed the acts which led to Mr Rein's death. That consisted in the words of Mr Smith's written submissions of Mr Manuel bashing Mr Rein with a length of wood in Mr Rein's home unit at Penshurst. 3. The defence case is that Mr Rein made a sexual advance towards Mr Manuel which was rebuffed. Mr Rein then attacked Mr Manuel with a piece of wood included amongst a number of pieces of wood he apparently kept for barricading the doors of his home unit. Mr Manuel disarmed Mr Rein and struck him a number of times causing the injuries which led to Mr Rein's death. 4. The real issues for determination by the jury consist of the following: 1. Whether at the time he bashed him with the wood Mr Manuel intended to inflict really serious personal injury upon Mr Rein; 2. Self-defence; and 3. Alternatively, provocation 1. The evidence of post-offence conduct which the prosecution wish to tender is the contents of a document that was admitted in the previous trial of Mr Manuel for this offence as Exhibit Q. Essentially it is a narrative of Mr Manuel's movements on 30 April 2013 after leaving Mr Rein's home shortly after 8.00am and arriving at Bowral railway station at 8.50pm that same day. 2. The evidence shows Mr Manuel making a number of purchases from various shops at the Westfield shopping centre at Bondi Junction. He is also seen to buy a large quantity of alcohol in the form of premixed drinks. Specifically he replaces his clothing including his shirt, his jeans and shoes, and discards the apparel he was wearing at the time he bashed Mr Rein. 3. The Crown submit that the evidence is generally relevant and admissible and is capable of establishing a state of mind in the accused when the events relayed in the narrative occurred amounting to a consciousness of guilt. In advancing that part of the submission I understand that at least in part the Crown acknowledge that to do that forensic work the evidence contained in what I have referred to as Exhibit Q has to be considered in context with other evidence, including a statement made by the accused to his mother that he believed by his actions that he had killed the deceased. 4. Mr Smith objects to the evidence being admitted. He says it is not relevant, and if it is, it should be excluded by the operation of s 137 Evidence Act. In advancing the argument that it is not relevant Mr Smith relies upon a number of decisions of the Court of Criminal Appeal relating not wholly but generally to what might be referred to as murder/manslaughter cases. 5. The main proponent of the principle which Mr Smith invokes is Simpson J (as her Honour then was). In R v Sievers (2004) NSWCCA 463; 151 A Crim R 426 at 443 the argument related to whether the admission of post-offending conduct in that case required the trial judge to give a consciousness of guilt direction as the learned judge did. The majority could find no fault with the trial judge's approach and an application for special leave was refused by the High Court of Australia. However it is significant to record some of Simpson J's reasoning in her dissenting judgment, as it was picked up by her Honour, this time in the majority, in subsequent cases. Her Honour said this at page 443: It is not, however, in my opinion, an appropriate direction to give where the only issue in the trial is whether the accused person is guilty of murder or of manslaughter. The direction implies that the accused person is aware of the sometimes subtle and sophisticated distinction between conduct constituting the crime of murder and conduct constituting the crime of manslaughter. In the present case it assumes appreciation as in the appellant of circumstances that would render this crime manslaughter as distinct from murder. Her Honour continued: The only issue in the trial was whether the Crown had eliminated provocation. To be relevant, the evidence had to be capable of showing that the appellant knew he was guilty of the crime of murder as distinct from the crime of manslaughter. It could not have been relevant for that purpose unless it went to the appellant's knowledge - and knowledge at the time of the act said to evidence consciousness of guilt - of circumstances relevant to the Crown's attempted rebuttal of the defence. (Emphasis added.) Her Honour continued, demonstrating the difficulty of proving such a specific state of mind and, I think, of adequately directing a jury in relation to it. 1. In the subsequent case of Steer v The Queen (2008) NSWCCA 295; 191 A Crim R 435 her Honour by incorporation repeated those views and said this at [68] – [69]: The traditional directions given to juries where conduct evidencing consciousness of guilt is relied upon by the Crown includes a strong caution that the jury must, before acting on that evidence, be satisfied that the guilt of which the accused is said to be conscious is of the offence charged, and not some other offence or other discreditable conduct. Ordinarily, that does not occasion too much difficulty. However where, as here, it is accepted by an accused that he is responsible for the death of the victim, but the issue is whether he is guilty of murder or the lesser crime of manslaughter, in my mind a real difficulty arises calling for carefully tailored directions. It is not sufficient, in my view, to tell the jury that they must be satisfied that the accused is conscious of his guilt of the crime of murder as distinct from manslaughter; that imputes to an accused person an appreciation of the circumstances that differentiate murder from manslaughter, and of circumstances that provide a partial defence (either by reason of provocation, or self defence) to a charge of murder. At paragraph 71 her Honour said: For those reasons, I respectfully disagree with that part of the reasoning of the Chief Judge that takes into account that the conclusion was open to the jury that the appellant was conscious that he had not acted in self-defence…and that, if the appellant's own account were accepted then he acted lawfully in self-defence and would have believed his actions were lawful. (Emphasis added.) 1. I should add that McClellan CJ at CL held that the direction was properly given to the extent to which the jury may have been persuaded that the post-offending conduct, in that case the accused committing an armed robbery, to put himself in funds to flee, with an explanation to his mother in the nature of an admission, may have indicated a consciousness on his part that he had not acted in self-defence ([37]). McCallum J agreed with Simpson J on this issue. 2. In a subsequent decision not involving the murder manslaughter dichotomy, the matter of R v Cook [2004] NSWCCA 52 her Honour set out five "conditions" that need to be satisfied before post-offending conduct, in that case lies told after the event, amounted to evidence of corroboration of guilt. The four conditions were drawn from the judgment of Lord Lane, CJ in The Queen v Lucas [1981] Q.B. 720 referred to by Brennan J in the leading Australian decision of Edwards v The Queen [1993] HCA 63; 178 CLR 193. To Lord Lane's four Simpson J added a fifth which was that the lie, I interpolate or other post-offending conduct, must be capable of being seen as indicating consciousness of guilt of the specific offence with which the accused is charged. Ipp JA and Adams J agreed with Simpson J's approach. 3. It is well to bear in mind that this is not a case where the question is solely is it murder or is it manslaughter? As the learned Crown Prosecutor has pointed out in his submissions this is a case where Mr Manuel pleads the general issue, that is to say he is not guilty of either murder, or manslaughter. Mr Smith acknowledges it may be open to the jury, if they are not persuaded Mr Manuel is guilty of murder, to bring in a verdict of manslaughter, depending upon the view they form of the primary facts, of course. 4. It seems to me that there is, in this area, a distinction between admissibility of evidence of post-offending conduct which may be relevant in the sense that if it is accepted it could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue which forms part of all of the circumstances established by the evidence to the satisfaction of the jury informing a decision beyond reasonable doubt on, say, the accused's state of mind at the time he performed the act, that is to say intention, and the admissibility of evidence of the same type which actually rises to a level where it can be said that the conduct in question amounts to an implied admission of guilt by conduct which the jury is entitled to weigh and assess as more or less independent evidence of guilt. 5. This distinction it seems to me is adverted to in a number of judgments of the Court of Criminal Appeal, including the recent decision of Gall v R [2015] NSWCCA 69 at [76] to [95], especially at [90] by Hoeben CJ at CL with whom the other members of the Court agreed, and also from the analysis of Fullerton J in Kuehne v R [2012] NSWCCA 270. In my view this distinction can also be seen in the reasons of Sir Gerard Brennan in Edwards. That was a case dealing with post-offending conduct which consisted of the telling of deliberate lies by the accused in evidence during the trial. His Honour said the following, which I find illuminating: Standards of proof become relevant to the finding of the facts on which the verdict depends - the facts constituting the elements of an offence or, in the case of insanity and some other exceptions, the elements of a defence and, where those facts are matters of inference, the facts from which the inference might be drawn. But the jury should not be directed that the corroborative effect of the making of a false statement by an accused depends on a finding beyond reasonable doubt either of its falsity or of the reason for making the false statement. It is sufficient that the jury be told that, if they form the view on the evidence other than the evidence to be corroborated that the accused has told a deliberate and material lie and that he did so because he was unable innocently to account for the facts revealed in the evidence to be corroborated, the jury is entitled to regard the telling of the lie as corroboration of that evidence. It then remains for the jury to find the facts upon which the verdict depends. It is at that stage that the question of standard of proof arises. His Honour continues: However, if the prosecution seeks to rely on the telling of the lie as an admission of guilt and invites the jury to treat that evidence as an independent proof of guilt, the prosecution bears the same onus as it bears whenever it relies on an alleged confession as an independent proof of guilt. It must prove beyond reasonable doubt that a confession of guilt was made. His Honour went on in a later paragraph: The telling of a lie by an accused is frequently relied on as a piece of evidence tending to inculpate the accused in the offence charged. The jury must consider the weight to be given to that evidence, but the weight of particular pieces of evidence does not involve a standard of proof. The relevant standard of proof governs the making of a finding of material fact on the pieces of evidence which logically, if not chronologically, the jury has already evaluated. The standard directions given by judges to juries in criminal cases distinguish (perhaps without consciously adverting to the distinction) between the evaluation of evidence and the finding of material facts. 1. It seems to me that the distinction his Honour is making in those passages is that where evidence is tendered as an implied admission, that is to say, as evidence of a consciousness of guilt, the Crown needs to prove beyond reasonable doubt that the evidence amounts to such. That is to say, that the evidence amounts to independent evidence of guilt. 2. On the other hand, where the telling of a lie and the taking of flight or other post-offending conduct, such as the destruction of evidence, is relied upon in a case it need not always be relied upon as an implied admission. Its admissibility, as such, does not depend upon it rising to the level of an implied admission or, to put it another way, as an independent proof of guilt, in the language of Brennan J. 3. As I have said, it seems to me that the type of evidence relied upon by the Crown is relevant in that it may tend to prove, in accordance with s 55 Evidence Act, that at the time he bashed Mr Rein, Mr Manuel had the requisite specific intention necessary to constitute the offence charged, which is the offence of murder. Whether it does so or not would be a matter for the jury to evaluate in accordance with all of the evidence led in the case in the process of determining whether they are satisfied beyond reasonable doubt of each of the various elements of the offence of murder. 4. In giving these reasons I am satisfied that the evidence of the post-offence conduct sought to be tendered in this case is admissible in that general sense. Whether it also rises to evidence of consciousness of guilt in an independent way, as discussed by Brennan J in Edwards, is to my mind not so clear. The principle for which Edwards stands as authority is that in circumstances where conduct is relied upon as an implied admission a jury must be given a specific instruction by the trial judge effectively cautioning them against the dangers of too readily embracing the argument that the evidence does constitute consciousness of guilt. I hope I may be permitted to observe it is ironic then that in some of the cases to which reference has been made statements appear that the giving of such a direction inappropriately is likely to be prejudicial to the position of the accused. I say ironic because the whole purpose of the requirement for such a direction to be given in appropriate cases is to protect the accused in the sense of enhancing the fairness of his trial. Some of the statements in the cases talk not of the admissibility of the evidence but rather of the appropriateness of giving the direction at all. 5. As things presently stand, I am not satisfied that the evidence relied upon by the Crown does amount to independent evidence of consciousness of guilt and, bearing in mind I am giving a ruling in advance of the trial, I am not persuaded that the evidence calls for the giving of a direction in accordance with the requirements of Edwards and subsequent cases, having regard to the potentiality for that direction to confuse, rather than assist, the jury in a given case. 6. The next question is whether, having ruled that the evidence is prima facie admissible as evidence which may inform the jury's decision about primary questions of fact and from which they may be entitled - I stress may be entitled - in due course to draw inferences about the elements of the offence, I turn then to the question whether the evidence must be excluded in accordance with the force of s 137 because its probative value is outweighed by the danger of unfair prejudice to Mr Manuel. 7. The evidence is a narrative of objectively determined facts being actions captured by CCTV recordings. What it proves will be a matter for the jury's determination, assisted as they will be by the respective arguments of counsel. It seems to me that, on the one hand, a scenario may be put by the Crown that from the accused going about his business, on a frolic of his own as it were after the event, that the jury might think that there could be some callousness which might say something about his intention at the time the events occurred. On the other hand, the defence will doubtless argue that the evidence is neither here nor there, that having been justified in the actions he took, the actions of the accused as shown in exhibit Q are consistent with his innocence, in that they show a person going about daily activities in an ordinary way, not proving anything about what was going through his mind at the time of the acts constituting the offence. 8. This, it seems to me, is a classic question for a jury to resolve. I do not think that to the extent to which there may be prejudice in showing the accused going about his business shopping, and the like, and asking people about where he might go for a drink that that prejudice is unfair in accordance with the provisions of s 137. In the circumstances I am not persuaded that s 137 is engaged and I rule that the evidence is admissible on the bases I have sought to explain in the giving of these reasons.