- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Cummins  QCA 308
CUMMINS, Kaius Patrick
CA No 156 of 2018
SC No 1411 of 2017
Court of Appeal
Appeal against Conviction
Supreme Court at Brisbane – Date of Conviction: 22 May 2018 (Bowskill J)
20 December 2019
29 April 2019
Morrison and Philippides and McMurdo JJA
The appeal against conviction is dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MURDER – where the appellant was convicted of murder and appealed on the ground that that the verdict was unreasonable or insupportable having regard to the evidence – where the central issue was whether the appellant applied a ligature which caused the deceased’s death with the relevant intent – where expert evidence was lead that the deceased’s injuries were consistent with manual asphyxiation – whether the verdict was unreasonable or insupportable having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OFFENCES AGAINST THE PERSON – MURDER – where the appellant was convicted of murder and appealed on the ground that there had been a substantial miscarriage of justice because the trial judge failed to direct the jury as to the proper use they might make of evidence of post-offence conduct – where the post-offence conduct in question was the appellant washing blood from his hands and chest and attempting to set up a false narrative – where the appellant submitted that the direction given was deficient because, inter alia , it failed to identify innocent reasons for the behaviour apart from a realisation of guilt – whether the direction given was deficient – whether there has been a miscarriage of justice
Edwards v The Queen (1993) 178 CLR 193;  HCA 63, considered
R v Baden-Clay (2016) 258 CLR 308;  HCA 35, considered
R v Chang (2003) 7 VR 236;  VSCA 149, considered
A O’Brien with N Boyd for the appellant (pro bono)
D L Meredith for the respondent
No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I have read the reasons of both Philippides JA and McMurdo JA. I agree with the reasons of both and the proposed order.
PHILIPPIDES JA: On 22 May 2018, after a trial, the appellant was convicted of the murder of Nigel Hill and sentenced to life imprisonment. By his Notice of Appeal, the appellant raised as the sole ground of appeal against his conviction that the verdict was unreasonable or could not be supported having regard to the evidence. However, at the hearing of the appeal, counsel for the appellant sought and was granted leave to add an additional ground of appeal as follows:
“There has been a substantial miscarriage of justice by reason of the fact that the learned trial judge failed to direct the jury as to the proper use they might make of the evidence of post-offence conduct involving the appellant washing blood from his hands and chest and attempting to set up a false narrative.”
Counsel did not abandon the ground of appeal going to the unreasonableness of the verdict but did not advance any oral or written submissions in support of that ground.
The appellant was charged with the murder of Mr Hill in a unit at Alexandra Headlands on 21 February 2013. The undisputed evidence was that the appellant and the deceased had been drinking on the day in question in the unit with Ms Cummins, the appellant’s partner. At one stage, Ms Cummins and the deceased went for a walk and on their return to the unit an argument ensued as to whether the deceased had been sexually intimate with (or had sexually assaulted) Ms Cummins. The appellant assaulted the deceased. The expert evidence was that the cause of death was not the blows the deceased received but asphyxiation, consistent with the application of a ligature to his neck.
The real issues at trial were whether the appellant applied the ligature to the deceased’s neck and, if so, whether he did so with the intent to kill or do grievous bodily harm.
Ms Cummins had known the appellant since 2005. Ms Cummins met the deceased through the appellant and she and the appellant went to stay with the deceased about a week after she travelled up from Adelaide. They stayed for three or four days in the deceased’s unit (unit 5 in the complex).
Ms Cummins’ evidence was that, on the morning of 21 February 2013, the deceased was depressed because his uncle was in a coma and unwell, and he had no money and no work. All three drank wine throughout the day with the appellant having commenced early in the morning, as he did every day. Ms Cummins spoke to the deceased who talked about what he was going to do, how he was going to get money and that he was very concerned about his uncle in hospital. The deceased’s interactions with the appellant were normal.
Towards the end of the day, Ms Cummins left the unit to go to the bottle shop. She went with Trevor Johnson, who lived next door. They were gone for about 20 minutes and Trevor purchased some cask wine which was taken back to the unit and consumed by Ms Cummins, the deceased and the appellant over a period of hours.
Around 6.30 pm, the deceased asked Ms Cummins to go for a walk on the beach. Ms Cummins told the appellant that she was going for a walk with the deceased and asked him if he wanted to come. The appellant said he did not want to and was “having a sleep”. Ms Cummins’ evidence was that she and the deceased walked for about 20 minutes by which time it was dark.
When they returned from the beach, the appellant was angry and hostile. He had been trying to find out where they were. The tenor of the conversation was that the appellant thought that there was something intimate going on between the deceased and Ms Cummins. The discussion developed into an argument about whether Ms Cummins had told the appellant where she and the deceased were going and whether anything had gone on between the deceased and Ms Cummins. She told the appellant that nothing was going on. The argument seemed to settle and Ms Cummins turned on the television. Ms Cummins then went to take a shower. When she returned, the appellant and the deceased were sitting in the lounge room having a discussion that felt tense and the appellant was accusing the deceased of touching Ms Cummins. The deceased was denying the accusations. The discussion went on for minutes.
The appellant moved from the couch, where he had been sitting, towards the deceased, who was sitting on a single seater. He pulled the deceased’s legs off the seat, pulling him to the ground so that he was lying on his back. The appellant then sat on the deceased, straddling him, and started to throw punches to the deceased’s face and nose. Ms Cummins was standing behind the couch and behind the appellant. She thought there were six to eight punches. Ms Cummins saw a pool of blood growing bigger. As the appellant punched the deceased he was yelling something to do with the deceased having touched Ms Cummins.
Ms Cummins then left the room “for a second” and went into the main bedroom. In cross examination she agreed she had gone outside to have a cigarette at some point during the attack. When she came back, the appellant had his hands on the deceased’s head, holding it on each side and was hitting it against the tiled floor. (The appellant was moving his hands up and down but Ms Cummins could not remember if the deceased’s head struck anything.)
The next thing Ms Cummins saw was that the appellant had a cord, like a television reception cord. She thought the appellant had it around the deceased’s neck. The appellant was straddling the deceased, sitting on him, and had the cord “wrapped like a shoelace on each side and was pulling it out” hard. The deceased was trying to release the cord but was not saying anything. Ms Cummins could hear that the deceased was trying to breath. Ms Cummins thought the pressure was applied to the deceased’s neck for “a long time”. It was minutes and she was yelling out. Ms Cummins walked over, put her hand on the appellant’s shoulder and said to him, “Just please stop. Isn’t this enough”.
The appellant released the pressure from the cable, got up off the deceased and went to the bathroom and washed the blood off his chest and hands. There seemed to be a lot of blood covering his chest. Ms Cummins saw the appellant wash his face and then turn the tap off. He was not in the bathroom for long. The appellant returned and said to Ms Cummins words along the lines of “he said he was going to do it himself anyway so let’s go and go to the pub”. The deceased had made reference to doing it to himself the night before.
Ms Cummins said, during her evidence, that “as soon as the door opened the police were right there”. She then had a conversation with the appellant, just outside of the front door, in which the appellant asked her to say that the deceased “did it himself, that he killed himself and [she] was off scared”. In cross-examination, she was asked to explain how it was that her DNA was on the TV cord wrapped around the deceased’s neck. She said her DNA would be everywhere in the unit as she was staying there. However, she denied touching the cable. It was put to her that she had taken the opportunity when the deceased was only unconscious to choke him with the cable, because he had sexually assaulted her and that was how her DNA came to be on the cable. Ms Cummins denied those propositions.
As at 21 February 2013, Trevor Johnson lived within the complex in unit 7 with his partner, Colleen Malone. He knew the deceased, who lived in unit 5, and had known him in the few months since the deceased had moved in. On 21 February 2013, Mr Johnson saw the deceased in the afternoon when he had taken a telephone over to the deceased in his unit so that he could call his father, at which time he was alone. Later that day, going on dusk, Mr Johnson saw the deceased in his unit with two people he had brought home from the pub (being the appellant and Ms Cummins).
Mr Johnson had a general conversation with them all and he thought that the deceased’s mood was continuously upbeat throughout the conversation. He subsequently went back and forth to unit 5 over the night and had some drinks. The appellant was drunk and Ms Cummins was also intoxicated.
Mr Johnson said Liam Malone and his partner, Narikah Orchard, arrived at Mr Johnson’s unit at around 9.00 pm and Mr Johnson set up the spare room for them, which was next to the front door of Mr Johnson’s unit and had a window to the front of the unit under which was a bench seat. After Mr Johnson had set up the spare bedroom, he went back to unit 5 and stayed there for another 10 or 15 minutes before returning to unit 7. At that time, the deceased, the appellant and Ms Cummins were all still drinking.
The appellant came to Mr Johnson’s unit and asked for a cigarette; he just walked in and introduced himself to Liam and Narikah. Mr Johnson then followed him back to unit 5 to have a drink and then went back to unit 7.
Later (a couple of hours but before midnight), Ms Cummins came to unit 7, bashing on the door. He was in his lounge room and Narikah and Liam were in the spare bedroom. Ms Cummins said, “You have to come with me. He’s killed him. I think he’s killed him. He’s killed him. Come with me”. (In cross examination, he said that when Ms Cummins came to his door, she said, “You have to come with me” and then, “I think he’s dead”.) Ms Cummins was “freaking out”, “frantic” and “loud”. She grabbed him by the shirt and dragged him towards unit 5.
Mr Johnson walked into unit 5. He said he saw the appellant standing over the deceased with the TV cord wrapped around the deceased’s torso and upper body. The appellant was pulling on the cord. (He accepted in cross examination that he had not said that to police when interviewed in February 2013 but explained that was because of shock.) Mr Johnson said he asked, “What’s going on”, “What the fuck’s going on” to which the appellant responded, “I had to” and he repeated that a few times. The appellant said the deceased tried to touch his girlfriend. Ms Cummins was right behind Mr Johnson when this exchange occurred. Mr Johnson was in unit 5 for a minute at the most. He then left Ms Cummins and the appellant in unit 5 and returned to unit 7 and spoke to Colleen Malone.
A couple of minutes later, Ms Cummins came to his unit. He managed to get her out. He then saw the appellant who asked if he could use Mr Johnson’s bathroom to wash the blood of his hands and feet. He refused as he had kids staying and it would scare them. Mr Johnson told the appellant he was ringing the ambulance. The appellant responded, “Yeah, ring the ambulance, don’t ring the dogs, just ring the ambulance”. He pointed the appellant to the laundry. The appellant was gone for a couple of minutes and, when he came back, his hands and feet no longer had blood on them. The appellant said to Mr Johnson, “I fucking had to. He tried to finger my missus”. The appellant was calm and pacing. He was still drunk and slurring his words.
Mr Johnson was outside with Ms Cummins and the appellant when the police arrived. About a minute later, Ms Cummins leapt off the appellant’s lap and pointed at him and said, “He killed him”. Ms Cummins came to be sitting on the appellant’s lap because the appellant had sat down and grabbed Ms Cummins and pulled her to his lap.
In cross-examination, Mr Johnston agreed that the first time he told anyone in authority that he saw the appellant pulling on the cord was to the prosecutor a week before the trial. He had not told the police that nor mentioned it at the committal in 2017. He explained that as being the product of shock and stress, but maintained he saw it.
Ms Malone gave evidence of overhearing parts of the conversation between the appellant, Ms Cummins and Mr Johnson as she was walking back and forth between unit 7 and the front of the unit complex waiting for the emergency services to arrive.
She gave evidence that earlier, the appellant came over to unit 7 looking for Ms Cummins. Later that night, Ms Cummins came to unit 7 bashing on the door asking Mr Johnson to go to her property. Mr Johnson went over to unit 5 with Ms Cummins following while Ms Malone stood in the doorway. Mr Johnson went inside and the door was closed. He came back out after about 20 seconds and walked straight back in to unit 7. He told her to call the emergency services. She went to the front of the complex waiting for them to arrive.
At some stage, the appellant came to the door of unit 7 with his hands out and said he had to wash the blood of his hands. Ms Malone observed that the appellant’s feet and hands had blood on them. The appellant was not allowed to enter unit 7.
As Ms Malone moved between unit 7 and the roadway, she overheard the appellant say that “he had to do it; he had to knock him”. He said this while sitting on a cane chair with Ms Cummins on his lap. Ms Malone also heard Ms Cummins say words to the effect that the deceased had tried to hurt himself and that the deceased was punching himself and she was using her hands to say he was trying to punch himself. Ms Malone remembered that the appellant agreed that is what the deceased was doing. Ms Malone was not sure who raised that issue first. In cross examination, Ms Malone agreed that she did not know the full context of the conversation that preceded the appellant saying, “I had to knock him”.
Liam Malone, Ms Malone’s younger brother, had arrived that evening at about 9.00 pm with his partner, Narikah Orchard, and was staying in the spare bedroom of unit 7. He recalled a lady banging on the door, screaming for Mr Johnson who went to the door. He thought Mr Johnson was calming her down. He then heard voices, including Mr Johnson, the lady and a man’s voice. He said it was the same man who had earlier come to unit 7 saying he did not know where his partner had gone and who he believed was the appellant.
He heard that male saying, “I knocked him. That’s what he gets for sticking his fingers in my girlfriend”, although he could not recall what word he used for “girlfriend”. He also heard the woman call the male a “cold-blooded killer” and that the male did not respond to the accusation. Throughout the woman remained frantic.
Mr Malone heard the male say to the lady, “we’ll tell them … he punched himself and fell and hit his head”. Mr Malone did not recall if the woman said anything in response. In cross examination, Mr Malone disagreed with the proposition that it was the woman who “started saying about he punched himself in the head”.
Narikah Orchard gave evidence that, on the evening in question, she was staying with her partner at his sister’s place. At a point in time, she went to the spare bedroom. She said she heard a woman come to the door, asking for Mr Johnson and saying, “I think he’s dead”. Not long after, she heard the same woman keep asking, “Is he dead?” and a man replying, “Yes, no one sticks their fingers in my wife’s vagina”. The woman said something along the lines, “You didn’t have to kill him. You’re a cold-blooded murderer”, and that the man responded, “Shut up or I’ll knock you, too”.
She also heard the man say, “We’re just going to say that he kept hitting himself, and he fell”. These conversations occurred outside the window to the spare bedroom and were loud enough for her to be able to make out what was being said.
In cross examination, Ms Orchard did not accept that it was possible that it was the woman who first said that the deceased was punching himself.
Mr Rogers lived in unit 2. He gave evidence that on 21 February 2013 his attention was drawn to a woman crying hysterically and that the crying was coming from directly across from where he was. He saw a woman crying but did not see anyone else. He said he heard her say, “I think I’m going to be sick”. He also heard a male voice, repeatedly say, “Calm down. Calm down”. He could not see the man who was speaking.
He then heard the woman say, “You didn’t have to kill him”. She heard the male voice respond, “He punched himself in the face a few times then hit the ground and hit his head”. He could not see who responded.
A recorded conversation between the appellant and Officer Gwillim shortly before midnight was admitted into evidence (exhibit 12). During the interview, the appellant said that the deceased had a history of punching himself in the face and had been saying he was going to commit suicide during the previous two days. The appellant said that he got up after going to bed to find the deceased on the floor with blood on his face and blood on the couch. The appellant saw that the deceased had a black cable around his neck, which the appellant pulled off and then checked his pulse and attempted to do CPR.
Recorded police interviews were also put into evidence, the first one taking place at 2.35 am, (exhibit 17) and the other at 8.22 am (exhibit 19). The appellant maintained that the deceased had been threatening to commit suicide for a few days, telling police that the deceased was saying he was going to “knock himself” and that he got up during the night, to find the deceased on the ground, ripped the cord off his neck and saw that he had blood all over himself. The appellant referred to the deceased’s history of bashing himself and said he tried to check his pulse and attempted CPR. The appellant said, referring to the deceased, that “He’s committed suicide” and that “he put a rope around, or something around his neck, [and] bashed himself up”.
A forensic pathologist, Professor Ellis gave evidence that neither the physical injuries to the head nor the level of alcohol in the deceased’s blood was sufficient to cause the death of the deceased, although they were considered to be contributing factors. The opinion of the forensic pathologist was that the principal cause of death was asphyxiation and that both the haemorrhaging to the deceased’s eyes and the bruises on his neck were consistent with manual asphyxiation. It was also the opinion of the forensic pathologist that it would be unusual for someone to kill himself or herself by manual asphyxiation. It would be difficult to do because they would lose consciousness first.
Prosecution case as to consciousness of guilt evidence
The prosecution case as to the evidence demonstrating a consciousness of guilt of murder or manslaughter relied on two bodies of evidence. The first body of evidence comprised lies the appellant told to police after the death. There is no complaint concerning those directions. The second body of evidence relied on as demonstrating a consciousness of guilt concerned two aspects of post offence conduct:
evidence that the appellant attempted to establish a false narrative as to what had transpired; and
evidence of the appellant washing blood from his hands, feet and chest.
The appellant’s complaint concerned that body of post offence conduct.
In summary the post offence conduct relied on in regard to attempting to create a false narrative was:
Ms Cummins’ evidence that the appellant asked her to say that the deceased had “did it himself, that he killed himself and [she] was off scared”.
Mr Malone’s evidence that he overhead a man (the appellant) say to Ms Malone, Ms Cummins and Mr Johnson to say that deceased “punched himself and fell and hit his head”.
Ms Orchard’s evidence that she overheard a man (the appellant) say to a lady (Ms Cummins), “We’re just going to say that he kept hitting himself, and he fell”.
Mr Rogers’ evidence that he heard a male voice saying, “He punched himself in the face a few times then hit the ground and hit his head”.
The other post offence conduct evidence relied on, that the appellant washed, or attempted to wash, blood from his hands, feet and chest, was, in summary:
Ms Cummins’ evidence that after the appellant got off the deceased, he went to the bathroom and washed the blood off his chest and hands and that she saw him wash his face and turn the tap off and said that he was not washing his hands and face for long.
Mr Johnson’s evidence that the appellant asked to use his bathroom to wash blood of his hands and feet and was directed to the laundry after which he returned with the blood gone.
Ms Malone’s evidence of the appellant coming to her door with his hands out and asking to wash his hands and that she noticed blood on his hands and feet.
The summing up
Having directed the jury as to the elements of the offence of murder, the trial judge directed that the prosecution was required to prove beyond reasonable doubt that the appellant caused the death of the deceased by strangulation. Her Honour directed the jury on the element of intention; that the prosecution was required to prove that the appellant killed the deceased intending to kill him or cause him grievous bodily harm. Her Honour then directed the jury that the prosecution case as to intent relied, in part, on confessional evidence and on evidence contended to demonstrate a consciousness of guilt.
Her Honour detailed what the prosecution was relying on as confessional evidence, which included evidence of motive. Her Honour then contrasted that confessional evidence with evidence showing consciousness of guilt.
After directing on the matters relied on as to lies demonstrating a consciousness of guilt, the trial judge identified the other evidence relied on by the Crown as post offence conduct:
“The Crown also relies on the evidence of the [appellant] setting up the false story or the false narrative. So in relation to that you might think that Liam Malone gave evidence of hearing the man whom he believed to be [the appellant] telling Trevor and the lady, who you might think was [Chaynelle], what to say when police and ambulance services got there and that he heard the [appellant] say, ‘We’ll tell them he punched himself and fell and hit his head.’ And similarly that you might think Narikah Orchard gave evidence to a similar effect.
The third aspect of this evidence that the Crown relies on is the [appellant’s] behaviour immediately after the incident of washing the blood off his chest and hands while he was still in unit 5, that is according to the evidence of [Chaynelle] Cummins, and then washing blood off his hands and feet, according to the evidence of Trevor Johnson and Colleen Malone. And the Crown says if you find the [appellant] did these things, that this behaviour also indicates a consciousness of guilt in relation to killing.”
Her Honour then gave the jury a direction as to the cumulative use of the evidence:
“Now, in relation to this part of the evidence, the focus of the Crown’s argument is on the lies. So that is the false narrative told to police. The other aspects of setting up the false narrative and the conduct of washing the blood off himself are relied upon in terms of the cumulative effect, as opposed to having a particular weight of themselves.”
The trial judge gave specific directions that dealt with the lies alleged to have been told by the appellant and provided an orthodox and detailed Edwards  direction that the jury needed to be satisfied beyond reasonable doubt that the appellant had deliberately told a lie and that the lie was concerned with some circumstance or event connected with the offence:
“So focussing first of all on the lies told to the police, before you can use this evidence against the [appellant] you must be satisfied of a number of things. Unless you are satisfied of these things you cannot use the evidence against the [appellant].
The first thing is you must be satisfied beyond reasonable doubt that the [appellant] has told lies. So you need to be satisfied there was not some misunderstanding going on with the police, between the police and the [appellant], or that he was emotional or did not understand what was being asked or something like that. You have to be satisfied he has deliberately told an untruth or a lie.
The second thing is you must be satisfied the lie is concerned with some circumstance or event connected with the offence. So you can only use the lies against the [appellant] if you are satisfied, having regard to those circumstances and events, it reveals a knowledge of the offence or some aspect of it...
So the third thing that you must be satisfied of and the one that you will focus your attention on, you must be satisfied that the lie was told because the [appellant] knew the truth of the matter would implicate him in the commission of the offence. So the [appellant] must be lying because he is conscious that the truth could convict him and not for some other reason. So there may be reasons for the lie apart from a realisation or a consciousness of guilt. People sometimes have an innocent explanation for lying. Examples in this case might be out of panic, fear, confusion, intoxication or perhaps to cover up for the actions of someone else, such as [Chaynelle] Cummins. Now, if you accept that a reason of that kind is the explanation for the lies, then you cannot use them against the [appellant].”
Her Honour continued:
“You can only use the lies against the [appellant] if you are satisfied that he lied out of a realisation that the truth would implicate him in the offence. That is, out of a consciousness of guilt of the offence. So if you are satisfied of that, so if you have put aside any innocent or other explanation and you are satisfied that he lied out of a consciousness of guilt, the next thing you need to consider is out of a consciousness of guilt of what?
In this case the lies could indicate a consciousness of guilt of the offence of murder, keeping in mind that incorporates both the element of causing the death and doing so with the intention to kill or cause grievous bodily harm. It is open to you to reason in that way. The lies might indicate that he thought he was guilty of murder, killing with the intention, but they could also indicate a consciousness of something less than that. For example, manslaughter, so killing [the deceased] but not with the intent, or simply assault.
Before you can use the lies as part of the proof of murder you must consider those alternatives, those lesser alternatives, and be satisfied that the lies did not relate to something like that rather than murder.
If you are satisfied that the lies were told out of a consciousness of guilt of the unlawful killing of [the deceased], you may use them in support of the Crown case for manslaughter. Now, even if you reach that point and you are satisfied the lies implicate the [appellant] in the unlawful killing, you must not simply jump from that to inferring that they also indicate he had the requisite intention. It is a matter for you, considering all the evidence and the facts as you find them, as to whether the [appellant’s] lies were told with a consciousness of guilt of unlawful killing with the requisite intention. It is only if you are satisfied that the lies were told in that circumstance and for no other reason that you can use them as a step in proof of the Crown case as to murder.”
Her Honour then stated:
“So repeating that: you need to be satisfied the lies go at least to unlawful killing in order to use them at all. If you are satisfied of that, you may use them as a step in proof of the Crown case of manslaughter. If you also think the lies implicate unlawfully killing with the intent to kill or cause grievous bodily harm, you may use them as a step in proof of the Crown case for murder. But if, for example, you think the lies indicate nothing more than a consciousness of guilt of something like assault, you cannot use them in your consideration of the offence of murder or the alternative, manslaughter.”
Immediately after that direction, the trial judge turned to the other post offence conduct, which comprises the impugned directions, and is as follows:
“In relation to the other conduct, that is washing the blood off his chest and hands and then setting up the false narrative, as I have already mentioned, the Crown relies on those as having a cumulative effect when taken with the lies told to police, as demonstrating the guilt of the [appellant] of the murder of [the deceased]. Once again, you need to be satisfied, first, that these things occurred. In relation to the washing of the blood, you then need also to be satisfied that that behaviour was motivated by a consciousness of guilt and not due to some other reason. And likewise with the setting up of the false story, you need to consider whether that was motivated by a consciousness of guilt.
The same process applies as with the lies told to the police, you must consider whether the behaviour showed a consciousness of guilt of the unlawful killing of [the deceased] and nothing else before you can use it against the [appellant]. If you are satisfied on the whole of the evidence that the behaviour was done out of a consciousness of guilt for unlawful killing, that is manslaughter, you may use it against the [appellant] for that purpose. Just like the lies, though, you may use the evidence as to the [appellant’s] conduct for the offence of murder also. But again, you can only use it against the [appellant] for the offence of murder if the behaviour was not done out of a consciousness of guilt of something less than killing [the deceased] with the necessary intent. It is only if you are satisfied on the whole of the evidence that the [appellant’s] conduct after the death of [the deceased] revealed a consciousness of guilt of murder and nothing else that you can use it against him for that offence.”
The appellant’s submissions
Mr O’Brien and Mr Boyd of Counsel, commendably appearing pro bono for the appellant, submitted that the question of whether the evidence of post offence conduct evinces a consciousness of guilt is to be considered in light of all of the evidence including any circumstantial evidence. It was submitted that an Edwards  direction should be delivered where post offence conduct was relied on to establish a consciousness of guilt. Further, in a case such as the present one, where the appellant faced both the charge of murder and manslaughter, it was incumbent upon a trial judge, in providing directions concerning post offence conduct, to indicate the element of the particular offence that was said to be admitted by the telling of the lie in question or by the specified conduct. If the element was merely the implication of the accused in the killing per se (whether the offence committed was a murder or manslaughter), the jury should be instructed that the admission was limited to that element only, namely, the physical act. If, however, it was contended that the lie established murderous intent, the jury should be warned that they should not infer from the fact that the accused was implicated in the killing that he or she had the requisite intention.
It was contended that there were three deficiencies concerning the post offence conduct direction given by the trial judge which resulted in a miscarriage of justice with the result that the conviction should be set aside and a new trial ordered.
The first deficiency raised was that the directions given failed to identify that there may be innocent reasons for the behaviour apart from a realisation of guilt, which goes to the essence of an Edwards direction. It was submitted that, while such instruction featured in the Edwards direction given earlier by the trial judge, what was said in the post offence conduct direction was not sufficient. The Edwards direction was limited to lies and it was not related to post offence conduct. It was not a general direction; it specifically concerned the evidence in support of the lies, which was discrete from the evidence in support of each instance of post offence conduct. In that regard, the reference to the Edwards direction by the words “the same process applies as with the lies told to the police” was insufficient and apt to mislead or confuse. Further, the reference to “some other reason” in the post offence conduct direction was only connected to the blood washing conduct and it deprived the jury of the essence of what the Edwards direction requires.
In respect of the second deficiency, it was submitted that the post offence conduct must be precisely identified and the jury should be directed that they must be satisfied that, having regard to all the evidence, a consciousness of guilt of any other offence (for example, unlawful assault occasioning bodily harm, grievous bodily harm or manslaughter) does not provide a possible reasonable explanation for the conduct. It was argued that the blood washing conduct was intractably neutral as between an assault or manslaughter. It was simply not open to conclude that the conduct involving the blood washing evidenced a consciousness of guilt for intentionally killing and not a consciousness of guilt for the assault or unlawful killing simpliciter. That was particularly the case where it was not associated with cleaning the scene. The mechanism of death was strangulation and the blood was present as a consequence of the assault on the face. Even if it was not intractably neutral, and thus a matter for the jury, these matters were not drawn to the attention of the jury and they ought to have been.
Further, the trial judge’s failure to precisely identify the evidence going to the creation of the false narrative was another inadequacy because it omitted Ms Malone’s evidence that she thought it was a woman who said words to the effect that “[the deceased] tried to hurt himself” and she was demonstrating the movement. The trial judge directed the jury, in general terms, about the need to be satisfied that the “behaviour” was done out of a consciousness of guilt of manslaughter, or murder, but that was inadequate. That is particularly so because of the use of the phrase “a consciousness of guilt in relation to killing” in the post offence conduct evidence direction so far as the blood washing was concerned. The use of that terminology suggested it was of universal application to murder and manslaughter; furthermore, it failed to acknowledge the possibility of an assault.
The marked difference in the “behaviour” required the trial judge to provide directions on the evidence of blood washing and the evidence of attempting to create a false narrative separately. This need is only heightened when regard is had to the issues with each body of evidence which affect their reliability. The reference that it was the same process as had been described for the Edwards direction was not sufficient to discharge the trial judge’s obligation to ensure the jury lawfully used the evidence.
A third matter of deficiency was the cumulative use direction which, it was submitted, confused the use that the Crown sought to make of the post offence conduct. It was contended that there was no doubt that the Crown identified that the blood washing and attempts to create a false narrative evidenced a consciousness of guilt and to describe the evidence as being cumulative (or circumstantial) was likely to confuse how it was to be used. Nor did it cure the requirement for a full Edwards direction to be given with respect to such evidence.
It was contended that, in the present case, the post offence conduct evidence was, in the context of the appellant’s marked intoxication, a significant plank in the Crown’s case in establishing intention. The failure to provide adequate directions as to the use that could be made of post offence conduct evidence deprived the appellant of a verdict of manslaughter. Accordingly, there was a substantial miscarriage of justice, notwithstanding that no redirection was sought and the directions were approved by the appellant’s trial counsel.
It is to be observed that the trial judge discussed the contents of the draft summing up with counsel prior to addresses and it was accepted as appropriate. No redirections were sought and, in particular, it was not requested that the Edwards direction be modified nor raised that there was any deficiency in that regard.
The trial judge was careful to give specific and distinct directions, firstly, as to what was relied upon as evidence of confessional statements and, secondly, “things that were said and done” by the appellant which were contended to be “demonstrative of a consciousness of guilt of the offence”. When turning to deal with that second category, her Honour reminded the jury of the evidence relied on by the prosecution, being “what might be described as evidence of consciousness of guilt”. In that regard, her Honour identified that the Crown relied on:
“… what are said to be lies told by the [appellant] to the police both shortly after the incident and later at the police station when he was interviewed, in which the [appellant] details a false narrative of what occurred on this night as well as behaviour of the [appellant] immediately after, as showing that he is guilty of the unlawful killing of [the deceased] and of having done so with the requisite intention.”
In outlining the second category of evidence, her Honour made it clear that, in relation to “this part of the evidence”, the focus of the prosecution’s argument was on the lies, the false narrative told to police, the other aspects of setting up the false narrative and the conduct of washing blood off himself and that it was the “cumulative effect” that was relied upon.
Her Honour, summarising the evidence as to lies, did the same in respect of the other evidence going to consciousness of guilt; the “setting up of the false story or narrative”, and the appellant’s “behaviour immediately after the incident of washing the blood off” himself.
After outlining that evidence, her Honour stated that she was then “focussing first of all on the lies told to police” and gave an impeccable Edwards direction in relation to the use of the evidence of lies as evidence of consciousness of guilt. As the respondent submitted, the directions as to lies included not only that lies could be told for reasons other than guilt (and some examples given) but her Honour also told the jury that lies could be told out of a consciousness of guilt of lesser offences such as manslaughter and simple assault. If the jury was not satisfied that the lies went to no more than assault then evidence of the lies could not be used. This immediately preceded the directions on post offence conduct. As mentioned, the appellant does not complain about the appropriateness of the Edwards direction per se . Rather, the complaint was that the Edwards direction was confined to the evidence as to lies and that there was a failure to provide such a direction as to the post offence conduct.
The contention that the Edwards’ direction given by the trial judge was limited to lies cannot be accepted and is premised on the contention that the direction should have been repeated in full when dealing with the other post offence conduct. That contention is flawed. The approach taken by her Honour was, rather than repeating the Edwards direction just given as to lies when directing the jury as to the “other evidence” indicated as being in the same category of evidence as the lies, to direct them that the “same process applies as with the lies”. Far from being insufficient and apt to confuse, her Honour’s direction made it abundantly clear that the detailed directions and warnings that had just been given as to the lies applied to the other post conduct behaviour. Her Honour reminded the jury that it was to consider whether the conduct, being the washing off of blood or the setting up of a false narrative, demonstrated a consciousness of guilt of murder and was not due to some other reason. Her Honour also specifically reminded the jury that they could only use the evidence in relation to manslaughter if it showed behaviour done out of a consciousness of guilt of an unlawful killing and that it could only be used in relation to murder if it showed that as well as the requisite intent “and nothing else”.
Her Honour had also earlier specifically directed the jury that the evidence of conduct of washing off of blood could only be used by the jury if it was satisfied that it was motivated by a consciousness of guilt “and not due to some other reason”. The appellant’s complaint that that direction was only as to the washing off of the blood, overlooks that, in the very next sentence, her Honour dealt with the setting up of a false story, directing that, “And likewise” the jury needed to consider whether that conduct “was motivated by a consciousness of guilt”. As the respondent submitted, it was clearly evident that the jury was being directed that the same reasoning applied for each type of conduct and it was implicit that the evidence could only be used if the conduct was “for no other reason”.
The second complaint that the trial judge did not precisely identify the evidence of two types of post offence conduct is also unfounded. Her Honour summarised that evidence sufficiently. As to the appellant’s complaint that her Honour did not point out that Ms Malone’s confessional evidence suggested it was a woman who said that the deceased tried to hurt himself, it is the case, as the respondent submitted, that that was not evidence relied upon by the prosecution. Further, the evidence was, in any event, mentioned to the jury by her Honour in detailing the confessional evidence.
As to the appellant’s complaint that the washing off of the blood was intractably neutral between an assault and manslaughter, it is to be recalled that the evidence given by Ms Cummins was that it was the appellant who assaulted the deceased, fixed the cord around his neck and pulled it. The prosecution case was that the appellant started to set up a false story, which he maintained with police, that the deceased was prone to punch himself and committed suicide. The respondent argued that to maintain such a story and separate himself from the attack on the deceased and his death, and in saying that he only touched the cord, the appellant needed to remove signs of his close contact with the deceased’s body. The jury was required to be satisfied that the appellant had strangled the deceased, as, on the evidence, that was the cause of death. The respondent argued that evidence the appellant was seen to have blood on him and then wash it off was, in the circumstances, highly relevant to the killing and the intent with which it was done and not intractably neutral. I agree with that submission.
The third complaint made by the appellant was that the cumulative use direction was apt to confuse. There was no complaint from experienced defence counsel on the direction as to the cumulative use of the evidence and no redirections were sought. The trial judge’s direction is properly to be understood as a direction that the circumstantial evidence of post offence conduct was to be considered in its entirety and not compartmentalised. The correctness of that approach was confirmed in R v Baden-Clay. There was no miscarriage of justice in the circumstances.
As mentioned the ground of appeal going to the unreasonableness of the verdict was not abandoned but no submissions in support of that ground were made. While that was an unsatisfactory state of affairs, as Mr O’Brien of Counsel explained, it was a product of the pro bono brief to appear. Although not abandoning that ground, Counsel was not able to identify any deficiency that would entitle the ground to succeed.
The real issue was as I have set out above: whether the appellant applied the ligature which caused the deceased’s death and, if so, whether he did so with the relevant intent. As the trial judge identified the latter was the central issue.
Having reviewed the whole of the evidence, I am satisfied that the jury was entitled to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of murder. Specifically the jury was entitled to be satisfied beyond reasonable doubt that the appellant had killed the deceased by asphyxiating him with a cord and that he did so with the requisite intent. The jury was entitled to have regard to evidence of motive, being that the appellant had a jealous rage at the deceased for sexually touching Ms Cummins and the evidence that the appellant not only severely beat and assaulted the deceased, but on the evidence of Ms Cummins, deliberately put the TV cord around the deceased’s neck, strangling him. Any inconsistencies in Ms Cummins’ evidence were not of a nature to render her an unreliable witness. There was also compelling evidence of post offence conduct, being the washing of blood off his hands, chest and feet, the confessional evidence, the setting up of the false narrative and his lies to the police. There was also a body of confessional evidence that was highly relevant and persuasive. The jury was entitled to reject as fanciful the defence suggestion that it was Ms Cummins, the other person present at the relevant time in the unit, who killed the deceased. The jury was also entitled to reject the defence of intoxication in being satisfied of the relevant intent.
I would dismiss the appeal.
McMURDO JA: I have read the draft judgment of Philippides JA. I am largely in agreement with her Honour’s reasons for concluding that this appeal should be dismissed. I wish to discuss some other evidence, which was important to the defence case at the trial, and which remains so in the consideration of whether the verdict was unreasonable.
The prosecution called evidence from Ms JM Wilson, a forensic biologist. She analysed DNA samples which were taken from the unit in which the deceased was killed. Police had taken three samples from the cable which the killer had used. Ms Wilson examined them, by reference to samples of the DNA of the deceased, the appellant and Chaynelle Cummins.
One of the swabs had been taken from about halfway along the length of the cable. Ms Wilson said that the DNA profile from this sample indicated the DNA of one person, and that this so closely matched the DNA of the deceased that it was unlikely to be that of anyone else. A second sample was taken from one end of the cable. That had a mixed DNA profile, but both the appellant and Ms Cummins were excluded as contributors to that sample.
It was the third sample which was significant, in the defence case. This was taken from the other end of the cable. There was a mixed DNA profile, indicating three contributors. The deceased was very likely to have been one contributor, in that Ms Wilson estimated that the DNA profile obtained was greater than 100 million times more likely to have occurred had he contributed DNA rather than if he had not. She estimated that the profile was about 1,400 times more likely to have occurred had Ms Cummins contributed DNA rather than if she had not. But the DNA profile obtained was 160 times more likely to have occurred “had [the appellant] not been one of the contributors … rather than if he had.” She explained that this meant it was more likely than not that the DNA profile found at that end of the cable occurred without a contribution from the appellant’s DNA. Ms Wilson said:
“So when we’re talking about levels of support for non-contribution, what we’re talking about is it’s more likely that it’s somebody else that may have contributed those DNA components or DNA components without being able to exclude him.”
That evidence was important for the defence case that it was Ms Cummins, and not the appellant, who applied the cable to the deceased’s neck and killed him with it. Throughout the trial, that was one stream of the defence case which the jury was asked to consider. It was raised first in an opening statement, by the appellant’s trial counsel, after the prosecutor had opened his case. Defence counsel then said to the jury:
“His DNA, ladies and gentlemen, does not appear on the weapon that is undisputedly the murder weapon, but Chaynelle Cummins’ does. You will hear, ladies and gentlemen, evidence in relation to that. …
There’s a lot of questions to be answered in this trial, ladies and gentlemen. It’s not straightforward. One [question being] three people in that room, two people[’s] DNA on the murder weapon – the deceased and Chaynelle’s. That’s going to be important.”
In the cross-examination of Ms Cummins, she accepted that she had not seen the cable before, and had never had cause to touch it. But she suggested that her DNA would have been on the cable because her “DNA would be everywhere, I was staying there.” By this stage she and the appellant had been staying there for three days. She suggested that she might have touched the cable when she was vacuuming although she did not know why she would have had reason to touch it.
Defence counsel suggested to her, in the clearest of terms, that she had been the killer. There was this passage in the cross-examination:
“Mrs Cummins, you, I’d suggest, took the opportunity when [the deceased] was unconscious to choke him with the cable because he had sexually assaulted you?---No.
And that’s the explanation why your DNA, and not [the appellant’s], is on that cable?---I don’t think so.
You don’t think so?---No, it’s not. No.
Because he had beaten up [the deceased] and walked out?---No. That’s wrong.”
In his closing address to the jury, defence counsel sought to persuade the jury by reference to this DNA evidence. He argued that the jury could not dismiss the evidence as insignificant, by a possibility that her DNA had been on his hands when he had touched the cable. Counsel submitted that there was no explanation for her DNA being on the cable other than that she had used it on the night. He argued there were only three people who had been in the room, the deceased, the appellant and Ms Cummins, and that the jury could not be sure that it was the appellant who had applied the cable to the deceased.
In his argument to the jury, the prosecutor acknowledged that the DNA evidence was “an important piece of evidence, at least for Mr Lewis.” (The appellant’s trial counsel.) The prosecutor suggested that Ms Cummins’s DNA may have been on the appellant’s hands, and was in that way transferred to the cable. He referred to evidence from Ms Wilson that a person may transfer DNA without touching an object. He reminded the jury that Ms Cummins had been living in this apartment for at least three days, from which he suggested that it was unremarkable that her DNA should be upon any object there, including the cable. He also reminded the jury that, although the cable was some 13 metres in length, only three swabs, each of 10 centimetres, were taken, so that it was possible that the appellant’s DNA was on a part or parts of the cable which had not been swabbed. And he reminded the jury of the evidence that blood is a rich source of DNA, and can mask other sources which are not so rich. That was said to provide an explanation for the absence of any trace of the appellant’s DNA in the three sections which were swabbed. The prosecutor said that the absence of the defendant’s DNA was unremarkable also for the reason that the presence, or absence, of DNA would depend upon the rate of shedding, and the evidence was that different people have different rates of shedding DNA cells.
In my view, the results of the DNA testing on the cable provided substantial support for the defence case, that it was Ms Cummins who had applied the cable to the deceased and thereby killed him. But that evidence did not require the jury to acquit the appellant. The DNA evidence had to be considered with all of the other relevant evidence. The prosecutor was correct in submitting that there were possible explanations for the absence of the appellant’s DNA on the cable. In my view, those matters did not of themselves put paid to the relevance of the DNA evidence; but they provided a rational basis for the jury to convict the appellant, notwithstanding the DNA evidence, if the other evidence proved his guilt beyond reasonable doubt.
The principal evidence against the appellant came from Ms Cummins. There were aspects of her testimony which the jury had to consider in deciding whether to accept that she witnessed the appellant kill the deceased. In cross-examination, she accepted that she was a heavy drinker, usually drinking more than a litre of wine each day, and that on the evening in question, she had been to the bottle shop twice. She had told police that she attempted to pull the appellant off the deceased, but accepted, in cross-examination, that she had not done so. She had also told police that at one stage she had gone outside to have a cigarette because she did not like the fighting. But she did not say so in her evidence-in-chief. At the committal hearing, she had testified that the appellant had bashed the back of the deceased’s head against the floor, but she had not said that in her evidence-in-chief, having said, at the committal, that this was something that was hard to forget. It was suggested to her that she had omitted this from her evidence at the trial, because she had become aware by then that there were no injuries to the back of the deceased’s head.
In my view, those matters, in combination, did not require the jury to reject her evidence. Nor was the jury required to do so, when putting those matters with the DNA evidence. It was open to the jury to reason that, whilst her memory was imperfect, as a result of her intoxication and perhaps the trauma of her experience, she was able to recall the essence of what she claimed to have witnessed, namely the strangulation of the deceased by the cable in the hands of the appellant.
Further, the evidence of Ms Cummins was not the only inculpatory evidence. There was also, for example, the evidence of Mr Johnson.
Having reviewed the evidence, I have concluded that it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant unlawfully killed the deceased.
The further question for the jury was whether it was proved that he had done so with the requisite intent. The nature of the act itself strongly indicated that he held that intent. The jury had to consider whether they were sure about that fact, having regard to the evidence of the appellant’s intoxication. In my conclusion, it was open to the jury to be satisfied that, in killing the deceased, he intended to do so. There was not only the nature of the act by which the deceased was killed, but also the circumstance of the appellant’s extreme hostility towards the deceased.
Substantially for the reasons given by Philippides JA, the jury was properly directed about the evidence of post-offence conduct. The evidence upon which the prosecution relied was sufficiently identified by the judge, as it had been by the prosecutor. The judge well explained the ways in which this evidence might be used in support of the prosecution case. In particular, her Honour explained that the jury might be satisfied that the conduct was evidence of the appellant having killed the deceased, without it being evidence that he had murdered him. The jury was able to understand from the directions that they had to exclude any other explanation for this conduct which was consistent with the appellant being innocent. But the judge was not obliged to tell the jury what other explanation or explanations there might be for the conduct.
Lastly, the appellant’s submission that the washing off the blood could not have been probative of his guilt, either for murder or manslaughter, cannot be accepted. This conduct was not to be considered in isolation. The jury was able to interpret that conduct as one of a series of things done by the appellant to try to make it appear that he had not assaulted the deceased at all. In isolation, it would not have been probative of guilt; but there was no miscarriage of justice by the jury being invited to see it as a particular of a course of conduct by which the appellant sought to make it appear that there had been no argument or violence in which he had been involved.
The appeal should be dismissed.
 AB1 at 57.6-20.
 AB1 at 57.22-26.
 Edwards v The Queen (1993) 178 CLR 193 at 211.
 AB1 at 57.28-58.10.
 AB1 at 58.12-40.
 AB1 at 58.42-49.
 AB1 at 59.1-24.
 R v Hill; R v Young  QCA 107 at .
 Edwards v The Queen (1993) 178 CLR 193.
 See R v Chang (2003) 7 VR 236 at ; R v SSB  QCA at ; Benchbook No 50.1.
 R v Mitchell  2 Qd R 142 at .
 R v Mitchell  2 Qd R 142 at .
 R v SSB  QCA 173 at .
 R v Chang (2003) 7 VR 236 at .
 R v Ciantar (2006) 16 VR 26 at -; R v R  QCA 121 at .
 Cf Zaburoni v The Queen (2016) 256 CLR 482 at .
 Cf R v Mitchell  2 Qd R 142 at , ; R v Carlton  QCA 294 at  citing R v May  Qd R 456 at 462-463; R v R  QCA 121 at .
 It is species of circumstantial evidence: Ciantar (2006) 16 VR 26 at .
 R v Chang (2003) 7 VR 236 at -.
 Cf Criminal Code, s 668E.
 See: BRS v The Queen (1997) 191 CLR 275 at 306.
 AB1 at 56.28-32.
 AB1 at 58.42-49.
 AB1 at 57.6-20.
 AB1 at 55.30-38.
 (2016) 258 CLR 308.
 AB1 at 47.41.
 AR 206.
 AR 210.
 AR 70.
- Published Case Name:
R v Cummins
- Shortened Case Name:
R v Cummins
 QCA 308
Morrison JA, Philippides JA, McMurdo JA
20 Dec 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||SC1411/17 (No Citation)||22 May 2018||Date of Conviction (Bowskill J).|
|Appeal Determined (QCA)|| QCA 308||20 Dec 2019||Appeal against conviction dismissed: Morrison and Philippides and McMurdo JJA.|