Citation: R v Early (No 6) [2023] NSWSC 581
Court: Supreme Court of New South Wales
Date: 30 May 2023
Judge(s): Yehia J
Background
The accused stands trial for the murder of a man found deceased in a Sydney park in January 1987. The Crown's case is partly circumstantial and partly based on alleged admissions the accused made to two other men. The central allegation is that the accused assaulted the deceased, either alone or as part of a group, causing a fatal subarachnoid haemorrhage.
Shortly after the deceased's body was discovered, the accused travelled to Bundaberg, Queensland, where he stayed with his brother for several days before returning to his rented unit in Randwick. The Crown sought to use this travel as evidence of "flight," inviting the jury to infer from the timing of the departure that the accused was fleeing the jurisdiction out of a consciousness of guilt for the killing.
Before leaving, the accused told his landlord he was going to Queensland and would come back. He also paid a week's rent in advance. The accused did in fact return. The defence did not object to the evidence of the trip being placed before the jury, but contested whether it could be characterised as flight going to consciousness of guilt.
Legal Issues
- Whether the accused's travel to Queensland, in the circumstances described, was capable of constituting evidence of flight demonstrating consciousness of guilt
- Whether the jury could legitimately be invited to reason from that evidence that the accused fled the jurisdiction to avoid arrest or prosecution
Decision
Yehia J applied the principles summarised by Simpson J in R v Cook [2004] NSWCCA 52, which establish that evidence of flight is governed by the same principles as evidence of lies relied upon as consciousness of guilt. Those principles require the court first to assess whether the evidence is even capable of supporting the consciousness of guilt reasoning before the question is left to the jury.
The court was not satisfied that the evidence met that threshold. The accused had told his landlord in advance that he intended to return, and had paid rent for the coming week. All of his belongings remained at his Randwick premises. He did in fact return after a few days.
Yehia J drew a clear distinction between an accused who travels interstate and later decides to return, and an accused who departs with an expressed intention to return and then does so. In the latter situation, the jury could not legitimately infer that the purpose of the trip was to flee the jurisdiction so as to avoid arrest or prosecution.
The court also noted that the accused's reference to his brother, when travelling, to having been "in a bit of a blue in the park" carried little probative value in isolation. It contained no detail about who the altercation involved or when it occurred, and the remark was made in a trial context where multiple witnesses had given tendency evidence about assaults on other men in the same park during the preceding year.
Orders Made
The Crown's application to rely upon the evidence of the accused's travel to Queensland as evidence of flight demonstrating consciousness of guilt was refused.
Key Takeaways
- Evidence of an accused travelling interstate after a victim's body is found is not automatically capable of constituting evidence of flight going to consciousness of guilt; the surrounding circumstances must be capable of supporting that specific inference.
- The Supreme Court held that an accused who informs his landlord he will return, pays rent in advance, leaves his belongings behind, and does in fact return cannot properly be said to have fled the jurisdiction.
- Under the framework in R v Cook, there are two distinct questions: whether the evidence is admissible, and whether it is capable of supporting consciousness of guilt reasoning. The parties here accepted admissibility but contested the second question.
- Where the evidence is incapable of grounding the consciousness of guilt reasoning, the question does not go to the jury at all, regardless of whether the evidence itself has been admitted.
- A bare statement by an accused that he had been involved in "a blue in the park," without further detail, was found to carry little probative value toward consciousness of guilt in a trial where tendency evidence already established a pattern of conduct in the same location.
Legislation and Cases Referenced
Cases:
- R v Cook [2004] NSWCCA 52
Legislation:
No specific legislation was cited in the judgment.