Supreme Court New South Wales Medium Neutral Citation: R v Russell (No 2) [2018] NSWSC 797 Hearing dates: 15, 16, 19-23 March 2018 Date of orders: 23 March 2018 Decision date: 23 March 2018 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: (1) Statements made by the accused at the time he was first stopped by police, immediately after the stabbing of the deceased, assuming that they are a lie in the Edwards sense, cannot be used to show or to argue for a consciousness of guilt of murder, as distinct from stabbing or manslaughter. (2) The statements may still be used to show an understanding of what had occurred which may still go to intent. Catchwords: EVIDENCE – allegedly false statements – where lies that may be used as consciousness of guilt – trial for murder for which accused pleaded to manslaughter – plea not accepted – lies cannot be used as consciousness of guilt for murder – discussion of The Queen v Baden-Clay [2016] 258 CLR 308; [2016] HCA 35 Cases Cited: Carr v Baker (1936) 36 SR (NSW) 301 Edwards v The Queen (1993) 178 CLR 193 Farah Constructions v Say-Dee (2007) 230 CLR 89; [2007] HCA 22 The Queen v Baden-Clay [2016] 258 CLR 308; [2016] HCA 35 The Queen v Ciantar (2006) 16 VR 26; (2006) VSCA 263 The Queen v White [1998] 2 SCR 72 Category: Procedural and other rulings Parties: Regina (Crown) Kevin James Russell (Accused) Representation: Counsel: W Creasey SC (Crown) A Webb (Accused) Solicitors: Office of the Director Public Prosecutions NSW (Crown) Maguire & McInerney (Accused) File Number(s): 2016/7801 Ex tempore Judgment 1. HIS HONOUR: Before the Court is an application in relation to the use that may be made by a jury of statements, if accepted, that were made by the accused at the time he was first stopped by police, immediately after the stabbing of the deceased. The application can be described in a number of ways. On one prescription, the Crown is asking for an Edwards (Edwards v The Queen (1993) 178 CLR 193) direction from the Court. However it is described, the Crown seeks to rely upon those statements as lies that disclose a consciousness of guilt by the accused of the offence charged. 2. I won't attempt to cite precisely the evidence in question, but after the call was made to police, the police saw the accused walking, turned the car around, stopped the accused, and asked him where he had been. This evidence assumes that the jury would accept the evidence of Senior Constable Koster, that, as part of the answer to the questioning of the police, the accused said words to the effect, "I've been at the beach all day", or "I've just come from the beach". 3. If those words are accepted as having been said, and there is some inconsistency, perhaps, in the evidence, and if it were accepted that the words were a conscious statement made, knowing the truth of what had actually occurred and, therefore, a lie as defined in Edwards and other cases, the Crown seeks to suggest that that lie demonstrates a consciousness of guilt of murder. 4. I issue these reasons on the assumption that those findings would be made, that they are matters for the jury, and are capable of being the subject of a conclusion to that effect. That is, that the accused consciously told a falsehood to disclose that he was not in the premises at which the stabbing occurred. 5. I have been taken by the Crown to two cases, each of which, in my view, is binding on the Court. Certainly the High Court judgment is binding on the Court, and that is not something that is confined to my view, but following the judgment of the High Court in Farah Constructions v Say-Dee (2007) 230 CLR 89; [2007] HCA 22, the Court as presently constituted ought not depart from a judgment of an intermediate Court of Appeal in another State or Territory unless that judgment is either irrelevant to the issue to be decided by the Court, or plainly wrong. 6. The statements of principle in the Victorian Court of Appeal judgment in The Queen v Ciantar (2006) 16 VR 26; (2006) VSCA 263, were cited with approval by the High Court in its judgment in The Queen v Baden-Clay [2016] 258 CLR 308; [2016] HCA 35, delivered on 31 August 2016. 7. The Court, that is the plurality of the Court, which was a unanimous judgment, was determining an appeal from a judgment of the Court of Appeal in Queensland in which the Court of Appeal overturned the jury verdict on the basis of the existence of a reasonable hypothesis consistent with manslaughter as distinct from murder. 8. It is necessary in understanding the judgment in Baden-Clay to understand some of the general background facts. 9. Baden-Clay was charged with murder. The trial at first instance was conducted on the basis of murder or nothing. That is that the death was caused by a fall or accidental death. The jury found the accused guilty of murder. The Court of Appeal determined, as earlier stated, that the facts left open a reasonable inference of manslaughter. The High Court overturned the judgment of the Court of Appeal and reinstated the verdict of the jury, and in the process discussed a range of issues, including what inferences may be drawn and/or are available as a result of evidence adduced during the course of the trial. 10. The High Court held as a matter of fact that the injuries suffered by the deceased were not injuries consistent with accidental death, or an unintended result. 11. I interpose that the accidental death in that circumstance was a more important factor than the unintended result because of the manner in which the proceedings were conducted at trial. 12. In the course of the judgment, the High Court discussed, particularly at paragraph 74 and surrounding, the issues associated with consciousness of guilt, which is of course the issue that I have identified earlier that the Court is required to determine. The Court cited the judgment of his Honour Justice Major in the Supreme Court of Canada in The Queen v White [1998] 2 SCR 72at p 89 at [27], in which the Canadian Supreme Court held with the issues associated with the use of post-offence conduct of an accused, and whether it is related to the crime before the Court rather than to some other culpable act. 13. Justice Major said that: "As a general rule it will be for the jury to decide on the basis of the evidence as a whole whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a use of patent of the jury's exclusivity fact-finding role." 1. The High Court at [74] referred to and summarised further comments of his Honour Justice Major in circumstances where the accused's flight or concealment is so out of proportion to the level of culpability involved in a lesser offence that it might be found by the jury to be more consistent with the more serious offence charged, and before the jury where there are alternate charges available, or alternate offences available; and refers specifically to [32] of the Canadian Supreme Court judgment. 2. Their Honours then said from [74]: "There may be cases where an accused goes to such lengths to conceal the death, or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime, and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder." 1. Their Honours referred to the judgment to which I have already referred in Ciantar. Continuing the quote: "There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter. As Justice Major said: 'The result will always turn on the nature of the evidence in question, and its relevance to the real issue in dispute'." (Emphasis added.) 1. The issue in dispute in these proceedings is not whether there was a stabbing. That is admitted. I have already circulated written directions to the jury, which have been the subject of submissions necessary from Counsel, which make clear that the fact of the stabbing and the responsibility of the accused for the stabbing is admitted as a deliberate act. The only issue in these proceedings is whether the requisite intent of causing grievous bodily harm, or killing, was present in the mind of the accused at the time that the stabbing occurred. 2. It is sufficient and uncontroversial for this summary to note that the accused was extremely drunk at the time that the offence occurred, and the issue is whether, because of that level of intoxication, the accused was capable and did form the requisite intention for the stabbing to constitute murder as distinct from manslaughter, to which the accused has already pleaded. 3. I am reminded, correctly, that consciousness of guilt, or post-conduct lies is one aspect of circumstantial evidence that like all, or most circumstantial evidence, may be gathered together like the strands of a cable, as it is often described, even when not proved beyond reasonable doubt, to make proof at the standard required by the criminal law to be effected. 4. The difficulty in this case is that the words spoken, again assuming they were spoken, and assuming they reflect a deliberate lie in the Edwards sense, are equally consistent with a desire to avoid apprehension for murder or manslaughter, or indeed a serious reckless wounding. 5. The facts of the case are that the accused described to another person who had enquired of him that the knife wound, effected by the accused, went "straight through". He also saw the deceased drop to the ground at the time of the stabbing, and noticed the deceased on the floor bleeding at the time immediately after the stabbing and, one would say, barely breathing. Whether he noticed all of those facts is not particularly relevant. That certainly is what happened, and he was there at the time 6. He would certainly have noticed that the accused was in serious trouble and was not moving. He was present when the ambulance was called, and was aware that steps were being taken to stop the bleeding, and left the scene at the time that the call was being made. 7. All of those are factors associated with an acceptance that the wound, once effected, was serious and could, or may, have led to death. 8. Nevertheless, as earlier stated, the issue before the Court is whether, at the time or immediately before the stabbing, the accused intended to kill or to cause grievous bodily harm, and whether on account of the level of intoxication that intention or one of those intentions was not formed. 9. In Carr v Baker (1936) 36 SR (NSW) 301 his Honour Chief Justice Sir Frederick Jordan referred to the process by which courts draw inferences and remarked that, where the drawing of an inference is equipoised, no inference can be drawn to one effect or the other. This is the principle to which the High Court was referring when it referred to post-offence conduct and lies being not always "intractably neutral as between murder and manslaughter". Where, however, the post-offence concealment "is intractably neutral as between murder and manslaughter", the statement or post-offence conduct cannot be used to prove murder as distinct from manslaughter. 10. Every case will depend upon its own facts. This case is probably not unique but it is confined because of the nature of the issue that is between the parties. 11. In my view, the inference that the words were spoken, assuming again that they were lies, in a manner which may be proof that there was an intent to effect really serious injury, or to kill, cannot be drawn in a way which aids the proof that such was the intention, as distinct from the act of stabbing. In those circumstances it seems to me, on the principles espoused by the High Court in Baden-Clay, supra, and by the Court of Appeal in Ciantar, supra, that the statements made, assuming again that they are a lie in the Edwards sense, cannot be used to show or to argue for a consciousness of guilt of murder, as distinct from stabbing or manslaughter. I make it clear, that the statements may still be used to show an understanding of what had occurred which may still go to intent, but it is the falseness of them that is the consciousness of guilt to which I have gone. I so rule. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2018