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6
Court of Criminal Appeal 9 December 2008

Steer v R

[2008] NSWCCA 295

Also reported as (2008) 191 A Crim R 435
Homicide
CRIMINAL LAW EVIDENCE PREJUDICIAL EVIDENCE WHETHER THE PROVISO SHOULD BE APPLIED S 137 EVIDENCE ACT 1995 S 6(1) CRIMINAL APPEAL ACT 1912

Citation: Steer v R [2008] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 9 December 2008
Judges: McClellan CJ at CL, Simpson J, McCallum J

Background

The appellant was convicted of murder in the NSW Supreme Court following the killing of the victim, whose throat was cut twice at his home in Taree. The Crown's case was that the appellant broke into the victim's house at night, motivated by jealousy over a former partner. After the killing, the appellant set the house alight and fled the scene.

Several days later, the appellant robbed a bank at Wauchope, making off with approximately $23,000. Before and during the robbery, he made statements suggesting he needed money to escape the consequences of something he had done. He also made repeated admissions of the killing to his former partner, a friend, his former wife, and his own daughter during a trip to Queensland.

The appellant appealed his conviction on three grounds: two relating to the admission of evidence at trial, and one concerning the adequacy of the trial judge's directions to the jury.

  • Whether evidence of the bank robbery and the appellant's proposed flight should have been admitted as consciousness of guilt evidence under s 137 of the Evidence Act 1995, given its potential prejudicial effect
  • Whether the trial judge's directions to the jury on how to use that consciousness of guilt evidence were adequate, particularly where the real issue at trial was murder versus manslaughter
  • Whether evidence that the appellant owned hunting knives should have been admitted, and if not, whether that error affected the conviction

Decision

Ground 1: Admission of the bank robbery evidence

The Court found that the bank robbery evidence was properly admitted. The robbery and related statements were capable of demonstrating the appellant's consciousness of guilt: they showed his perceived need to obtain a large sum of money quickly and to flee. Simpson J characterised the robbery as evidence exposing "the desperate situation in which the appellant perceived himself to be." The appellant's statement to the bank teller during the robbery was treated as an unequivocally incriminating admission. The Court held that the evidence fell within the principles governing consciousness of guilt established in Edwards v The Queen (1993) 178 CLR 193.

Ground 2: Directions on consciousness of guilt

Simpson J (with McCallum J agreeing) expressed reservations about the adequacy of the trial judge's jury directions on consciousness of guilt, particularly given that the real contest was between murder and manslaughter. Where a person admits responsibility for a death but disputes the degree of culpability, it is not sufficient merely to direct the jury that they must be satisfied the accused was conscious of guilt of murder rather than manslaughter. Simpson J reasoned that such a direction wrongly assumes the accused understands the legal distinction between murder, manslaughter, self-defence, and provocation. Her Honour noted these are legal concepts that an accused cannot ordinarily be presumed to know. However, despite finding the directions inadequate, Simpson J would still dismiss the appeal because the evidence against the appellant was extremely strong, including repeated and consistent admissions with no hint of self-defence or provocation in any of them.

McClellan CJ at CL reached the same ultimate conclusion on ground 2 but by a different route, taking into account that it was open to the jury to conclude the appellant was conscious he had not acted in self-defence. Simpson J respectfully disagreed with that aspect of the Chief Judge's reasoning, adhering to views she had expressed previously in R v Sievers [2004] NSWCCA 463, even though her judgment in that case had been a dissent and special leave to appeal to the High Court had been refused.

Ground 3: Hunting knives evidence

All three judges agreed with McClellan CJ at CL's reasoning on this ground, and the appeal on this basis also failed.

Orders Made

  • The appeal against conviction was dismissed.

Key Takeaways

  • Consciousness of guilt evidence, such as post-offence flight and commission of further offences to fund an escape, is admissible where it is capable of demonstrating the accused's awareness of serious criminal liability, provided the probative value is not outweighed by unfair prejudice under s 137 of the Evidence Act 1995.
  • Where an accused admits causing a death but disputes whether it amounts to murder or manslaughter, standard consciousness of guilt directions require careful tailoring: a direction simply requiring the jury to be satisfied the accused was conscious of guilt of "murder" may be inadequate, as it assumes the accused understands the legal distinctions between murder, manslaughter, self-defence, and provocation.
  • Simpson J and McCallum J held that self-defence and provocation are legal concepts, and an accused person should not ordinarily be presumed to know what circumstances make them available.
  • Notwithstanding a finding that jury directions were inadequate, the Court of Criminal Appeal applied the proviso under s 6(1) of the Criminal Appeal Act 1912 and dismissed the appeal, because the evidence of guilt was overwhelming, consisting of a pattern of repeated admissions containing no suggestion of self-defence or provocation.
  • The bench was not unanimous in its reasoning on the consciousness of guilt directions, with McClellan CJ at CL and Simpson J reaching the same outcome by different analytical paths, reflecting a continuing area of complexity in the law.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- R v Sievers [2004] NSWCCA 463
- Sievers v The Queen [2005] HCA Trans 663
- Can v R [2007] NSWCCA 176
- Gonzales v R [2007] NSWCCA 321; (2007) 178 A Crim R 232
- House v The King (1936) 55 CLR 499
- Markby v The Queen (1978) 140 CLR 108
- Quinlan v R [2006] NSWCCA 284; (2006) 164 A Crim R 106
- R v Cook [2004] NSWCCA 52
- R v SJRC [2007] NSWCCA 142
- Smale v R [2007] NSWCCA 328
- Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195