Citation: R v Manuel [2015] NSWSC 1562
Court: Supreme Court of New South Wales
Date: 12 October 2015
Judge: Campbell J
Background
The accused was charged with the murder of a friend, with the alleged offence occurring on 30 April 2013 at Penshurst, NSW. It was not in dispute that the accused had beaten the deceased with a length of wood. The defence case was that the deceased had made an unwanted sexual advance, then attacked the accused with the wood first, and that the accused disarmed him and struck him in self-defence or under provocation.
The real issues for the jury were whether the accused intended to inflict really serious personal injury, and whether self-defence or provocation applied. A verdict of manslaughter remained open if the jury rejected murder but accepted some partial defence.
Before the jury was empanelled, the Crown sought a preliminary ruling under s 192A of the Evidence Act 1995 (NSW) on the admissibility of evidence of the accused's movements and conduct in the hours after the offence, captured in CCTV footage. That evidence showed him travelling to Bondi Junction, making purchases, replacing his clothing (including the items he wore during the assault), discarding the old clothing, and buying a large quantity of alcohol.
Legal Issues
- Whether evidence of the accused's post-offence conduct was relevant and admissible, particularly as potential consciousness of guilt evidence.
- Whether the murder/manslaughter dichotomy created a special difficulty for admitting consciousness of guilt evidence, given the principle developed in cases such as R v Sievers and Steer v The Queen.
- Whether, even if admissible, the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW) because its probative value was outweighed by the danger of unfair prejudice to the accused.
Decision
Campbell J ruled the evidence admissible. His Honour distinguished the line of Court of Criminal Appeal authority, associated particularly with Simpson J, which had expressed concern about consciousness of guilt directions in cases where the sole issue was murder versus manslaughter. That line of authority highlighted the difficulty of expecting an accused to have appreciated the technical legal distinction between murder and manslaughter at the time of the post-offence conduct.
His Honour held that this case was materially different. The accused had pleaded not guilty generally, meaning the jury could acquit entirely. It was not a case in which the only real question was whether the killing amounted to murder or manslaughter. The post-offence conduct could rationally inform the jury's assessment of primary facts, including the accused's state of mind at the time of the offence, without necessarily requiring a narrow consciousness of guilt direction tied to the murder/manslaughter distinction.
Campbell J accepted that the precise form of any jury direction on consciousness of guilt would require careful tailoring. His Honour noted that the appropriateness of such a direction, drafted consistently with Edwards v The Queen and subsequent cases, would need to be assessed having regard to the risk that it might confuse rather than assist the jury. That question was left to be resolved in the context of the full trial.
On the s 137 question, his Honour found the evidence was objectively captured CCTV footage of the accused going about ordinary activities. The Crown could argue the conduct reflected a callousness bearing on the accused's intention; the defence could argue it was entirely consistent with innocence. Campbell J concluded this was a classic jury question and that any prejudice arising from the evidence was not unfair prejudice within the meaning of s 137. The evidence was admitted.
Orders Made
• The evidence is ruled admissible on the bases explained in the reasons
• The evidence is not excluded under s 137
Key Takeaways
- The Supreme Court confirmed that the principle limiting consciousness of guilt directions in murder/manslaughter cases, developed through Simpson J's reasoning in R v Sievers and Steer v The Queen, does not automatically bar admission of post-offence conduct evidence where the accused has pleaded not guilty to both murder and manslaughter and acquittal remains genuinely open.
- A meaningful distinction exists between the admissibility of post-offence conduct evidence and the appropriateness of a particular consciousness of guilt direction: evidence may be admitted as relevant to primary facts even where a formal consciousness of guilt direction would be problematic or require careful tailoring.
- Under Edwards v The Queen and subsequent authority, post-offence conduct (including lies or other acts) must be capable of indicating consciousness of guilt of the specific offence charged. Simpson J's additional "fifth condition" in R v Cook requires this specificity before such conduct can operate as corroborating evidence.
- Where post-offence conduct consists of objectively observable acts captured on CCTV, the competing inferences available to the Crown and defence are generally matters for the jury to resolve rather than grounds for exclusion at the admissibility stage.
- Section 137 of the Evidence Act 1995 (NSW) was not engaged where the prejudicial effect of the evidence arose from its legitimate probative force rather than from any unfair or irrational danger to the accused.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 137, 192A
Cases
- 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) NSWCCA 295; 191 A Crim R 435
- The Queen v Lucas [1981] QB 720