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Court of Criminal Appeal 14 February 2022

Edwards v R

[2022] NSWCCA 22

Also reported as (2022) 107 NSWLR 301
Homicide

Citation: Edwards v R [2022] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 14 February 2022
Judges: Bathurst CJ, Rothman J, Dhanji J

Background

The appellant was convicted of the murder of his wife in March 2015. The Crown case was entirely circumstantial: the deceased's body was never found, which limited the expert evidence available on cause and manner of death. The prosecution relied on evidence of the couple's troubled relationship, the appellant's movements on the night the deceased disappeared, and a pattern of post-offence conduct including lies and inconsistent accounts given to police.

The appellant did not give evidence at trial. His counsel's closing address proceeded on the basis that the Crown had failed to prove beyond reasonable doubt that the appellant was involved in his wife's disappearance. The appellant's behaviour after the disappearance was characterised at trial as explicable by grief and confusion.

After the judge had already directed the jury on lies and consciousness of guilt, trial counsel raised the possibility of leaving an alternative verdict of manslaughter, which was ultimately left to the jury. The jury returned a verdict of guilty of murder. The appellant was sentenced to 24 years' imprisonment with a non-parole period of 18 years. He sought leave to appeal against conviction only.

  • Whether the trial judge erred by failing to direct the jury that post-offence conduct and lies could be used as evidence of consciousness of guilt of manslaughter (not only murder), and that the jury should only draw the inference of consciousness of murder guilt if satisfied those lies were not told out of consciousness of guilt of manslaughter.
  • Whether the post-offence conduct and lies were "intractably neutral" as between murder and manslaughter, such that a specific direction to that effect was required.
  • Whether the trial miscarried because the jury were not directed in a fair and balanced way about the reasonable hypotheses consistent with manslaughter that needed to be excluded before a murder verdict could be returned.
  • Whether the murder verdict was unreasonable and unsupported by the evidence.

Decision

Grounds 1 and 2: Consciousness of guilt directions. The Court found no miscarriage of justice arising from the absence of a direction that the post-offence lies could indicate consciousness of guilt of manslaughter rather than murder. The evidence was not "intractably neutral" as between the two offences: the nature and extent of the concealment and the lies told were more consistent with guilt of murder than of manslaughter. Further, the failure by trial counsel to seek such a direction was an objectively justifiable forensic decision, given the way the defence case was run.

Ground 3: Directions on hypotheses consistent with manslaughter. The Court rejected the argument that the summing-up was unfair because it did not spell out the reasonable hypotheses consistent with manslaughter. There was no obligation on the trial judge to enumerate further hypotheses beyond those already addressed, and no miscarriage of justice resulted from the directions as given.

Ground 4: Unreasonable verdict. The Court examined the whole of the evidence and was satisfied that the jury's verdict was not unreasonable. Even accepting the possibility that any assault was unplanned, the evidence pointed strongly toward an intention to inflict at least really serious injury. The absence of any disturbance heard by neighbours, the absence of evidence of intoxication, the force implied by an injury to the appellant's hand, and the subsequent concealment of the body all supported that inference. The Court held it was unnecessary to rely on the principle from Weissensteiner v The Queen in reaching that conclusion.

Bathurst CJ added brief observations about the proper application of the proviso under s 6(1) of the Criminal Appeal Act 1912, drawing on the High Court's recent decision in Orreal v The Queen. His Honour clarified that the proviso requires consideration of whether any error or miscarriage had the capacity to influence the jury's verdict. Where that capacity exists, the proviso cannot be applied, as to do otherwise would duplicate the function of the jury.

Orders Made

• The appeal must be dismissed.

Key Takeaways

  • Post-offence lies and concealment are not automatically "intractably neutral" as between murder and manslaughter. Where such conduct is more consistent with guilt of murder, no special direction is required to instruct the jury to consider the evidence in the context of the manslaughter alternative.
  • A failure to seek a particular jury direction at trial will not necessarily constitute a miscarriage of justice where the omission was an objectively justifiable forensic decision in the context of the overall defence strategy.
  • In circumstantial murder cases where no body is recovered, the cumulative weight of relational evidence, post-offence conduct, and physical evidence can still support a finding of intent to cause at least really serious injury, satisfying the mental element for murder under s 18(1)(a) of the Crimes Act 1900 (NSW).
  • The Court of Criminal Appeal confirmed, following Orreal v The Queen, that the proviso to s 6(1) of the Criminal Appeal Act 1912 is not available where the relevant error had the capacity to influence the jury's verdict. Applying the proviso in such circumstances would impermissibly replicate the jury's function.
  • No error was established in the trial judge's failure to enumerate every reasonable hypothesis consistent with manslaughter, provided the summing-up as a whole addressed the defence case fairly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), s 20
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- King v The Queen (2012) 245 CLR 588; [2012] HCA 24
- Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 1
- Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
- La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
- ARS v R [2011] NSWCCA 266
- Darwiche v R [2011] NSWCCA 62
- Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
- Greenhalgh v R [2017] NSWCCA 94
- Meakin v R [2018] NSWCCA 288
- Mulvihill v R [2016] NSWCCA 259
- R v Birks (1990) 19 NSWLR 677
- R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
- Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59