Citation: R v Russell (No 2) [2018] NSWSC 797
Court: Supreme Court of New South Wales
Date: 23 March 2018
Judge(s): Rothman J
Background
The accused stood trial for murder arising from a stabbing. He had pleaded guilty to manslaughter, but that plea was not accepted by the Crown. The sole issue at trial was therefore whether the accused possessed the requisite intent for murder, specifically whether he intended to kill or cause grievous bodily harm, or whether his level of intoxication prevented him from forming that intent.
Shortly after the stabbing, police stopped the accused nearby. The Crown relied on evidence from Senior Constable Koster that the accused told police he had "been at the beach all day" or had "just come from the beach." The Crown sought to use those statements as deliberate lies demonstrating a consciousness of guilt of murder.
The application before Rothman J was whether the jury could be directed to use those alleged lies as evidence of consciousness of guilt of the murder charge, following the principles in Edwards v The Queen (1993) 178 CLR 193.
Legal Issues
- Whether alleged false statements made by the accused to police immediately after the stabbing could be used as evidence of consciousness of guilt of murder, as distinct from manslaughter.
- Whether post-offence lies are capable of being probative as between murder and manslaughter where the act of stabbing itself is admitted.
- How the principles in The Queen v Baden-Clay [2016] HCA 35 and The Queen v Ciantar (2006) VSCA 263 apply where the only issue in dispute is the accused's intent at the time of the offence.
Decision
Rothman J ruled that the alleged lies could not be used to demonstrate a consciousness of guilt of murder, as distinct from manslaughter or serious wounding. His Honour reasoned that the words attributed to the accused, assuming they were deliberate falsehoods in the Edwards sense, were equally consistent with a desire to avoid apprehension for any of those offences. Because the inference was evenly balanced, it could not be drawn to favour the Crown on the murder charge.
The central authority was the High Court's decision in Baden-Clay, which confirmed that post-offence concealment and lies are not always "intractably neutral" as between murder and manslaughter. However, the corollary also flows from that principle: where the post-offence conduct is intractably neutral as between the two, it cannot be used to prove murder as distinct from manslaughter. Rothman J applied this corollary directly to the facts.
His Honour also drew on the principle from Carr v Baker (1936) 36 SR (NSW) 301 that where drawing an inference is equipoised, no inference can be drawn one way or the other. In circumstances where the accused admitted the stabbing was a deliberate act and the only dispute was intent, the alleged lies could not advance the Crown's case on that specific question.
Rothman J clarified one important qualification. The statements could still be used to show the accused's understanding of what had occurred at the time of the offence, which remained potentially relevant to intent. It was only the use of their falseness as consciousness of guilt of murder that was excluded.
Orders Made
No orders were made in this decision.
Key Takeaways
- Post-offence lies are not automatically neutral as between murder and manslaughter, following Baden-Clay, but the converse equally applies: where such lies are intractably neutral as between the two offences, they cannot be used as evidence of consciousness of guilt of murder.
- The probative value of alleged post-offence lies depends entirely on the real issue in dispute at trial. Where the act is admitted and only intent is contested, lies about presence at a scene may not advance proof of the specific intent required for murder.
- A false statement excluded as consciousness of guilt of murder may still be admissible for another purpose, such as showing the accused's understanding of events, which may bear separately on the question of intent.
- The Queen v Baden-Clay [2016] HCA 35, citing The Queen v Ciantar (2006) VSCA 263, was treated as binding authority on how courts should assess post-offence conduct evidence where both murder and manslaughter are in play.
- Under the principle from Carr v Baker, where an inference is equally available in two directions, a court cannot draw it in favour of either party; this principle applies to the assessment of consciousness of guilt evidence.
Legislation and Cases Referenced
Cases:
- Edwards v The Queen (1993) 178 CLR 193
- The Queen v Baden-Clay [2016] 258 CLR 308; [2016] HCA 35
- The Queen v Ciantar (2006) 16 VR 26; [2006] VSCA 263
- Carr v Baker (1936) 36 SR (NSW) 301
- Farah Constructions v Say-Dee (2007) 230 CLR 89; [2007] HCA 22
- The Queen v White [1998] 2 SCR 72 (Supreme Court of Canada)
Legislation: No specific legislation cited in the judgment.