R v O'Brien[1999] QCA 216

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 469 of 1998

Brisbane

THE QUEEN

v.

RICHARD GEORGE O'BRIEN

Appellant

McMurdo P

Pincus JA

Muir J

Judgment delivered 11 June 1999

Separate reasons for judgment of each member of the Court;  each concurring as to the orders made

APPEAL ALLOWED.  CONVICTION SET ASIDE.  RETRIAL ORDERED.

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 11 June 1999

1. I have had the advantage of reading the reasons for judgment of Pincus JA who has set out the grounds of appeal.

2. The Crown case was that the appellant inflicted fatal blows upon the deceased, his de facto, when they were alone in the house between 12.35 pm (the time when the deceased saw Nurse McKenna at the Aurukun hospital) and about 3 pm (the time when the appellant went to the police knowing the deceased was dead). The extent of the serious injuries suffered by the deceased have been sufficiently outlined by Pincus JA. At 12.35 pm Nurse McKenna did not notice any difficulty in the deceased's walking or breathing, there was definitely no head laceration and no apparent lip injury. The appellant and the deceased had been arguing the previous night and on the day of her death. Before the deceased visited Nurse McKenna, Winifred Ngakyunkwokka saw blood on the deceased's nostrils and lips. In addition, the deceased's sister said "I looked at her and she was in the chest, paining up in the head". The pathologist Dr Williams agreed it was possible that an earlier injury to the chest could have been exacerbated by a fall against the shower wall. Despite the shocking injuries to the deceased, Dr Williams agreed it would be possible for her, after receipt of these injuries, to breathe lightly using only the diaphragm rather than the chest and ribs and although she would appear breathless, she would be able to walk. She would not have died immediately but within half an hour to 10 hours of the infliction of the trauma. Severe force would be required to inflict the injuries such as stomping or jumping on the deceased: the injuries could not result from merely falling to the ground and were more consistent with injuries arising from motor vehicle accidents. When pressed as to how long it would have taken the deceased to die after the infliction of injuries Dr Williams answered "I can only speculate and say probably about 4 or  5 hours".  The appellant told police that the deceased complained of terrible pain before going to the hospital on Sunday and that on her return during an argument he pushed her and she hit the wall then fell down and fell over again at least once on her way to the shower.  He was not asked about any violence prior to the deceased's visit to the hospital.

3. The appellant did not give evidence.

4. The facts I have outlined indicate that the case, run as it was on the basis that the injuries were inflicted between the visit to the nurse at 12.35 pm and her death by at least 3 pm, was not without its difficulties for the respondent.  The learned judge, however, stressed to the jury that the Crown case was that the injuries were inflicted within this time frame and that -

"[it] follows then of course, that you would have to be satisfied beyond a reasonable doubt that the deceased sustained the fatal injuries during that time, not at any other time obviously, because that would not be consistent with the case advanced".

5. Were this the only ground of appeal it would in my view fail.  The jury were entitled to find that the fatal injuries occurred during the time period relied on by the Crown and that the appellant inflicted those injuries: bearing in mind the severity of the injuries, the jury were entitled to reject as unreasonable the hypothesis that the deceased already had those injuries when she was seen by Nurse McKenna. 

There is however an additional difficulty for the respondent in this case in that the respondent submitted below that its case was strengthened by lies told by the accused to the police, and the issue of lies then assumed a degree of importance in the case. The appellant's version of events given to the police was certainly inconsistent with the injuries being inflicted in the time frame claimed by the Crown but could have been consistent with her receiving those injuries prior to that time.

6. Edwards v  The Queen^[1] requires  that -

"in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest."

7. The learned trial judge in this case failed to precisely identify the lie upon which the Crown relied.  His Honour's words "a lie about the circumstances as to what happened between he and the deceased" does not sufficiently identify the portion of the appellant's statement to the police which is said to be a lie. Nor did his Honour precisely identify the circumstances that are said to constitute an admission against interest, or in other words, his Honour did not identify the evidence, independent of the appellant, which clearly showed that the relevant portion of the accused's statement to police was a lie.^[2]  His Honour should have identified the questions and answers in the police interview said to constitute the lie and also identified the Crown evidence independent of the appellant said to show those questions and answers were lies.

8. Although Edwards is authority for permitting the Crown in cases such as this to rely on the accused's statement to police as a lie constituting an admission against interest, there are problems with circularity of reasoning, as Pincus JA points out.  The issues for the jury would have been clearer and no disservice done to the Crown case had the lies not been relied upon in this way by the Crown.  I respectfully agree with the comments made by Hunt CJ in Zheng^[3] that before seeking to rely on lies as strengthening the Crown case as evidence of guilt:

"Crown Prosecutors should satisfy themselves first that there are available to the Crown arguments which demonstrate a logical relevance of the lies upon which they rely."

9. The failure to precisely identify the lie and the evidence which demonstrated that it was a lie, together with the emphasis placed on the lie in the summing up and no doubt in the prosecutor's address, in a circumstantial case which was not without difficulty for the respondent (at least as it was conducted below as to time frames) constitutes an error and a substantial miscarriage of justice. The appeal must be allowed and a retrial ordered. I agree with the orders proposed by Pincus JA.

REASONS FOR JUDGMENT - PINCUS JA

Judgment delivered 11 June 1999

1. The appellant was convicted of murder and appeals on two bases.  First, it is said that the verdict was unsafe and, secondly, that an erroneous direction was given with respect to the relevance of lies supposedly told by the appellant.  Mr Long, who appeared for the appellant, relied principally on the latter point.

2. The death occurred as a result of injuries to the chest and abdomen.  It is unnecessary to set those out in full detail, but it should be mentioned that there were multiple fractures of the ribs on the left side and the pathologist who did the postmortem was "able to just move out a segment of chest wall" because there were lacerations in the lungs associated with jagged ends of ribs and the liver had been lacerated.

3. The argument with respect to safety of the verdict depended entirely upon the prosecution having tied itself to a case that the extensive injuries I have mentioned were inflicted between the hours of 12.35 pm and 3 pm.  There was evidence that injury had been sustained by 12.35 pm when the deceased presented herself at a clinic and was examined by a nurse.  Having taken a history from the deceased the nurse examined "predominantly" her head and face.  According to the nurse's observations the deceased was "walking freely by herself" but had taken alcohol.  The nurse said that the deceased was exhibiting no signs of pain in the area of her chest.  The theory which the Crown had to exclude was that, despite the nurse's evidence, the grievous injuries which the pathologist found had already been sustained at the time of the nurse's examination.

4. Apart from the unlikelihood, as a matter of commonsense, of the nurse not having noticed the extensive injuries of which the pathologist spoke, there were other indications that those injuries were suffered after the deceased left the clinic.  She then went to her sister's house for a rest before returning to her home where, the appellant admitted to police, he was present.  The pathologist found a 2.3 centimetre laceration on the back of her scalp which appeared to be have been bleeding at the time of death and an injury inside the lip.  The nurse gave evidence that he had examined the scalp very carefully.  There was also the fact that according to the pathologist's evidence, about a quarter of the deceased's total blood supply had drained into her abdominal cavity and chest cavity.  He thought that with the injuries which he found on postmortem the deceased would have had difficulty walking and would have been very breathless.  The defence was able to rely upon evidence from the deceased's sister that at a time before the deceased went to the clinic she looked at the deceased and "she was in the chest, paining up in the head".  There was evidence, which assisted the defence, of a high concentration of alcohol in the blood which would have diminished the deceased's pain from the injuries and evidence, to put it generally, which gave rise to the possibility that the injuries would if present at and before 12.35 pm not have been observed.

5. There was nevertheless a very strong case that the injuries were sustained after the visit to the clinic, reinforced by the absence of any evidence in explanation or denial from the appellant who, as I have mentioned, was at home with the deceased after she came back from the clinic;  her death was reported to the police by the appellant about 3pm. 

6. In my opinion the argument that the Crown did not adequately establish that the fatal injuries were caused after the visit to the clinic must be rejected.

7. The second ground of appeal, as I have mentioned, relates to directions as to lies.  Mr Long contended that the judge's directions on this subject were deficient in that his Honour did not identify any particular lie or lies and that the reasoning his Honour put forward was essentially circular.  What the judge told the jury was, in effect, that the telling of a lie may tend to prove that an offence is committed if the jury is satisfied:  that a lie has been told;  that it relates to a matter relevant to the question of whether the offence was committed or not;  and that it springs from a realisation or consciousness of guilt and the knowledge or fear that telling the truth would convict the accused.   The Crown prosecutor had told the judge that the version of events given by the appellant to the police was "entirely implausible". The appellant had told police that after the deceased returned to the house, having visited the clinic, she started to hit him with some thongs and he pushed her.  Then "[s]he went bang on the side with the wall, and she fell down . . .".  He picked her up and suggested she have a shower;  as she walked to the shower, she tripped and fell.  He again picked her up but she fell again and "hit on the right hand side of the wall".  These events were extremely unlikely to have caused the fatal injuries.  But what the appellant told the police, although impossible of belief if the fatal injuries were sustained after the deceased came home, could have been true if she was fatally injured before coming home from the clinic.  If the jury were inclined to have some doubt as to whether the fatal injuries were sustained before or after the visit to the clinic, it would have been illogical for them to resolve that doubt on the basis of the lie relied on by the Crown.  Only if one starts from the finding or assumption that the fatal injuries were suffered after the deceased returned home, that being the whole issue in the case, does the appellant's account to the police of what happened then appear to be plainly false.

8. In Zheng (1995) 83 A Crim R 572, to which Mr Long referred us, the question was whether the appellant received bags containing heroin from another person in a car park.  The appellant's story was that he was present in the car park, but on innocent business.  It was held that the argument for the Crown that this story was an incriminating lie was wholly circular, because the appellant could be found to have told a lie only if the jury were satisfied of the correctness of the Crown case.  The result supports Mr Long's argument.

9. In Edwards (1993) 178 CLR 193, what seemed to be a difficulty in the third of the requirements laid down in Lucas [1981] QB 720 at 724 was dealt with by the principal judgment of the High Court.  That third requirement is that, for lies to be corroborative they must spring from a realization of guilt and a fear of the truth.  It was argued for Edwards that the requirement involved circular reasoning because to satisfy the requirement it must first be shown that the accused is guilty (209).  Denying that there was any circularity, Deane, Dawson and Gaudron JJ. held that if the lie is not the only evidence against the accused and is not an indispensable link in the chain of proof then:

"The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt.  They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt". (210) (emphasis added)

I have emphasised the words "that evidence" because it is not quite clear to what evidence the judges refer, but their Honours must I think have had in mind acceptance of the proposition last mentioned, that the lie in question "exhibits a consciousness of guilt";  the subject being discussed in this paragraph of the judgment is identified in its second sentence, "the requirement that there be a consciousness of guilt".   I have difficulty in seeing how a jury could be satisfied that there existed in the accused a consciousness of guilt unless they were satisfied that the accused was guilty;  the other possibility is a consciousness of guilt derived from an erroneous thought in the accused's mind that he is guilty.

10. One is obliged to hold that the High Court's interpretation of Lucas erases the problem of circularity;  it is not as clear to me as it should be that this is so.  But my disinclination to set the verdict aside because of the circularity of the proposition the learned trial judge put before the jury is, in the present case, diminished by the circumstance that his Honour did not tell the jury what lie he was talking about. 

11. Somewhat regretfully, I have come to the conclusion that Mr Long's submission must be accepted and the appeal allowed.  I would order that the conviction be set aside and the case retried.

REASONS FOR JUDGMENT - MUIR J

Judgment delivered 11 June 1999

1. I have had the advantage of reading the reasons for judgment of McMurdo P and Pincus JA. I agree that the appeal on the ground that the verdict was unsafe and unsatisfactory should be dismissed for the reasons advanced in those reasons for judgment.

2. I also agree that the appeal should be allowed on the grounds of an erroneous direction in respect of lies allegedly told by the appellant. In the joint judgment in Edwards v The Queen (1993) 178 CLR 193 it was said at 210-211 -

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest (See M v. R (unreported; S.A. Court of Criminal Appeal; 18 August 1993; pp.4-5)). And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it (See, e.g. Credland v Knowler (1951), 35 Cr. App. R 48; Tripodi v. The Queen (1961), 104 C.L.R. 1, at p. 10; Reg. v Buck (1982), 8 A. Crim. R. 208, at p. 214; Reg. v. Preval, [1984] 3 N.S.W.L.R. 647, at pp. 650-651; Reg. v. Evans (1985), 38 S.A.S.R., at pp. 348-349; People v. Showers (1868), 440 P. 2d 939, at p.942.) and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v Lucas (Ruth), because of ‘a realization of guilt and a fear of the truth’.”

3. In his summing up the learned trial judge, in addressing the use which could be made of lies allegedly told by the appellant, said inter alia -

“It would only be that if upon the evidence you thought that the accused had told a lie about the circumstances as to what happened between he and the deceased, and you are satisfied beyond a reasonable doubt from that evidence taken alone, or from that evidence with other evidence such as the nature and extent of the injuries Dr Williams observed, that the accused had killed the deceased in circumstances amounting to murder, that a verdict of guilty could be returned to murder.

Similarly when one considers the question of manslaughter, if the evidence that I have just referred to did not satisfy you beyond a reasonable doubt that the accused was guilty of murder, it would only be if that evidence, that is the evidence that the accused had told a lie about relevant events as between he and the deceased, taken alone or with the other evidence that I have just referred to, satisfied you beyond a reasonable doubt that the accused had unlawfully killed the deceased in circumstances amounting to manslaughter that you could return a verdict of guilty of manslaughter.” (emphasis supplied)

4. It will be seen that the subject matter of the alleged lie is described in extremely general terms as -

• “... a lie about the circumstances as to what happened between he and the deceased...
• a lie about relevant events as between he and the deceased ...”

Shortly after the passage quoted above, his Honour, in dealing with the prosecutor’s argument, said -

“... it is said (by the prosecution) that the accused gave a false account of what occurred during that time while he and the deceased were in the house together to the police and that that false account has the character that I have just told you it would be necessary that it have, before it could be used as evidence tending to implicate the accused.”

It does not seem to me that this passage ought necessarily have been regarded by the jury as confining the scope of the earlier part of the direction about lies. Even the latter passage probably falls short of precisely identifying what is said to be the lie and “the circumstances and events that are said to indicate that it constitutes an admission against interest” were not identified.

5. I agree with the orders proposed by Pincus JA.