SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant was convicted by a jury of the murder of Luis Planas.  The first set of grounds upon which he appeals against his conviction concerns rulings during the course of the trial: he says that the learned judge erred in declaring a witness hostile and in admitting prejudicial evidence.  The second set of grounds comprises complaints of the summing-up: that the learned judge misdirected the jury about the use of circumstantial evidence to establish intent; wrongly failed to direct the jury about the appellant’s refusal to answer questions on legal advice and the use which could be made of evidence of lies and propensity; and reversed the onus of proof in his directions.  Finally, as a separate ground, it is said that the verdict was “contrary to the weight of the evidence”, because the jury could not have been satisfied beyond reasonable doubt that the appellant killed Mr Planas with the intent to kill him or do him grievous bodily harm.

The events of 18 & 19 August 2006

[2] Luis Planas died in the early hours of the morning of 19 August 2006 at the Innisfail home of a woman named Dora Morseu.  He was a friend of hers, and had been staying there, sleeping in her son’s bedroom, for about three weeks.  The appellant was Ms Morseu’s nephew, but before the night of 18 August 2006, he and Mr Planas were not known to each other.  On that night, Mr Planas and Ms Morseu were drinking at various Innisfail hotels, when they encountered the appellant, who arranged to stay at Ms Morseu’s house for the night.  Mr Planas was the first to give up drinking and go back to Ms Morseu’s house; she returned there with the appellant at around 2.00 am.  Ms Morseu was extremely intoxicated.  She went straight to bed, noticing as she passed her son’s bedroom that the door was closed.

[3] Ms Morseu described waking later and seeing that her nephew was in the bedroom Mr Planas occupied.  She could see that his right arm was moving, with his hand clenched, and she heard him saying, “Get up, get up”.  She called to her nephew, “[L]eave him alone, he’s asleep, and he’s staying with us”.  The last she saw of Mr Planas before she fell back to sleep was that he was lying on the floor in the hallway.  She could see his lower body, clothed in the shorts he usually wore to bed.  Later still, her nephew came into her bedroom urging her to come and have a drink with him, but she refused.  At this stage she could no longer see Mr Planas’ legs. 

[4] A neighbour of Ms Morseu, David Mow, had also spent the night drinking, with his younger brother Colin, at Innisfail hotels.  They also returned home in the early hours of the morning and sat for a while smoking on their back patio.  David Mow gave evidence that he heard a man and woman arguing and yelling from Ms Morseu’s house.  He recognised the woman’s voice as that of Ms Morseu, whom he had known for five or six years.  Colin Mow said in his evidence that he heard Ms Morseu yelling.  Questioned as to whether he heard anyone else’s voice, he said he had not, nor had he heard any other noise besides Ms Morseu’s voice.  That was not consistent with his police statement.  What followed will be set out in more detail later, but for present purposes it is sufficient to say that he was ultimately declared hostile.  His statement was admitted; in it he had described hearing two voices yelling, one of them male, and two big bangs, as well as other muffled banging noises, coming from Ms Morseu’s house.

[5] Mr Planas’ naked, dead body was found lying face down in the front yard of Ms Morseu’s house on the following morning.  An ambulance arrived at about 7.40 am.  That morning a taxi driver took a male passenger from an Innisfail rank to Gordonvale; the appellant subsequently admitted that he was the passenger.  He was arrested that afternoon at a Gordonvale hotel. 

Evidence concerning the injuries to Mr Planas

[6] A paramedic, Mr Faulks, had attended with the ambulance.  He saw injuries to Mr Planas’ face:  there was swelling to his nose, suggestive of a fracture, and severe bruising to the left side of the face, particularly around the eye socket.  Mr Faulks also noticed dried blood and bruising around the chest area, abrasions to the feet and bruising to the right bicep and ankles.  A police scientific officer, Sergeant Ganzer, arrived shortly after and directed the taking of photographs and video footage of the body, the yard and the house.

[7] The video recording was tendered.  As it was played in court, Sergeant Ganzer identified the various cuts, abrasions, bruising and bloodstains on the dead man’s face, head, torso and limbs.  Forty-three still photographs of Mr Planas’ injuries were also tendered, without objection.  There were nine of the face and head; for each mark or injury on the torso and limbs, there was one photograph showing its position on the body and a second, close-up shot.  Sergeant Ganzer explained what the photographs depicted.  There were abrasions and cuts on Mr Planas’ face and head, with, in particular, some skin lost from his forehead and scalp, bruising below one ear, blood coming from the ears, and bruising around his eyes.  Blood had clotted in his nose and mouth.  He had bruising to his upper arms, abrasions on both hands, blood stains on the right upper arm and hands, some grazes on his shoulder blade, blood stains and bruising on the left side of his torso near the rib cage, and an abrasion on the ankle.

[8] Mr Planas’ blood-stained clothing was recovered from a wheelie bin outside the house.  Blood stains were found at the entrance to the house, in the lounge room which led off the entrance and on numerous items in one of the bedrooms.  Sergeant Ganzer suggested that some of the stains on boxes on the bedroom floor were consistent with blood aspirated from Mr Planas’ mouth and nose.  There was some blood staining on the linoleum of the kitchen floor, which seemed to have been wiped over; a blood stained mop was found.  Most of the blood stains found in the house matched the DNA profile of Mr Planas, except for two on the doona cover in the bedroom, which matched that of the appellant.  Blood stains matching Mr Planas’ DNA profile were also found on the appellant’s shorts, socks and shoes.

[9] A forensic pathologist, Dr Williams, gave evidence.  He described a number of abrasions and lacerations to the head and body.  The right ear had a crushed appearance, with lacerations at its base consistent with a kick or a blow with a weapon or fist.  There had been 10 or more blows to the face.  Injuries to the face and ears, he said, commonly resulted from applications of force when a body was lying on the ground, more likely through a kick than a punch.  There were patterned abrasions on Mr Planas’ face, probably produced by whatever was used to inflict the injuries.  Severe force would have been required to produce the degree of injury to Mr Planas’ face, particularly the crushing injury to the right ear.  There was damage to the brain consistent with kicking or stomping to the head.  Dr Williams thought it likely that Mr Planas had been knocked to the ground and then kicked in the head. 

[10] Mr Planas’ ribs were fractured on both sides, consistent with a diffuse force having been applied to his chest.  It was difficult to fracture ribs by direct punches to a standing person’s body; those injuries were likely to have been caused by stomping when Mr Planas was on the ground.  His sternum mastoid muscle on the right side was bruised, suggesting an application of force to the right side of his neck.  Mr Planas had died from the inhalation of blood from the nasal passages into the lungs, but he also had suffered subdural and subarachnoid haemorrhages. 

The appellant’s police interview

[11] The appellant was interviewed on the evening of 19 August 2006.  He claimed that after he, Ms Morseu and Mr Planas had all returned from the hotel to his aunt’s house, they had some drinks together.  His girlfriend arrived and he left with her at 4.15 am.  She gave him a lift to Edmonton.  When he left, Mr Planas was sleeping in the bedroom.  He had had no fight with him and had not punched him. 

[12] After a break in the interview, however, the appellant’s account changed.  He said that he had had an argument with Mr Planas about the latter causing problems in the relationship between Ms Morseu and her ex-boyfriend.  Mr Planas had hit the appellant with his fist.  The appellant had responded by punching him once with each hand in the face.  He had hit Mr Planas in the hallway, not the bedroom, then dragged him to the toilet and left him there.  Mr Planas was bleeding from the nose.  The appellant’s girlfriend had arrived and he left the house with her, after waking Ms Morseu to tell her that he was going and that Mr Planas was unconscious.  He agreed that he had taken a taxi to Gordonvale at about 7.30 am.  His girlfriend had, he said, dropped him at the taxi rank. 

[13] After about two hours, the interview was suspended in order to change the tapes.  When it resumed, the interviewing police officer reminded the appellant of his rights to remain silent and to contact a legal representative.  He then asked the appellant to confirm that while the tapes were off, he had said that he would like to contact Legal Aid.  The taping was again suspended for that purpose, and resumed after about half an hour.  The police officer asked the appellant whether he had had time to speak with his legal representative by telephone and whether he had been given certain instructions; the appellant answered in the affirmative to both questions.  He was asked whether he wished to continue with the interview and said he did not.  The police officer continued, “Okay, so you were advised from your solicitor not to continue with the interview any more, is that right?” and the appellant replied, “Yeah”.  The police officer went on to say that he would ask no further questions because of that advice, and the interview was terminated. 

The defence case

[14] The appellant entered a plea of not guilty, and did not give evidence at the trial.  However, in his address, his counsel conceded that the appellant had killed Mr Planas.  He contended that the Crown had not proved intent; that in attempting to do so, it had to rely on inherently doubtful circumstantial evidence; and that there must be a doubt about the appellant’s capacity to form an intention, given his intoxication.  Provocation and self-defence were also left to the jury.

The appeal grounds

The admission of the photographs and video recording of Mr Planas’ injuries

[15] Counsel for the appellant submitted that the prejudicial effect of the photographs and video recording of Mr Planas’ injuries was far in excess of its probative value.  It was conceded that the photographs were not particularly gruesome or distressing (although the video recording contained an unattractive image of a fly crawling on the dead man’s mouth), but their number was excessive.  What was really in issue at the trial was the appellant’s intent, to which it was relevant to establish the cause of death and the force used to inflict the injuries.  The photographic and video evidence did not serve that purpose.  It was difficult to get a proper perspective of the number of injuries, because two photographs had been taken of each individual injury.  That could give the impression of an assault of greater severity than in reality occurred.  The photographs and the video recording did not, it was submitted, add anything to the evidence of the witnesses who described the injuries.  They were not adverted to by the forensic pathologist when he gave his evidence, and indeed no expert explained what was seen in either.

[16] The learned judge had given the jury a direction about the photographs:

“You should dismiss all the feelings of sympathy or prejudice, whether it be prejudice for or against the defendant or anyone else. This is a consideration of some importance in this particular case. The injuries that Mr Planas, the deceased, sustained as disclosed by the medical evidence and the photographs, you might think were quite shocking, but the defendant is not charged with the offence of assault, he is confronting the most serious charge, namely murder. You must be especially careful not to allow any sense of revulsion or

outrage at the severity of the deceased’s injuries to deflect you from a calm, rational assessment of what the evidence reveals concerning the central issues.”

Counsel submitted that the direction was confusing: it was not clear what the learned judge meant to convey by telling the jury that the appellant was not charged with assault.

[17] That part of the video recording which shows Mr Planas’ body lasts for about a minute and a half.  Some 34 of the still photographs show marks on the torso, back and limbs: cuts, abrasions and some bruising.  (The genitalia are not shown in either photographs or video tape.)  There are nine still photographs and a brief portion of the video tape focussing on the injuries to Mr Planas’ face and head which are more disturbing, because they show bruising around the eyes and some areas of congealed blood, particularly in the area of the mouth and nose.  Even so, however, they are not, relatively speaking, shocking or gruesome photographs.  Similarly, although the fly on the dead man’s mouth is an unhappy image, it is brief, and not likely to have occasioned any lasting or significant reaction in the jury.

[18] It was important, in a case which turned on proof of intent, that the jury see for itself the nature and location of the wounds, particularly those to the face and head.  Both the video tape and the photographs were probative in establishing the extent of the injuries.  And although the pathologist did not give evidence directly about the photographs, his descriptions of the injuries and their likely causes could be related to them. 

[19] It is most unlikely the jury would have been in any state of confusion about the number of wounds it was looking at.  Sergeant Ganzer identified what each mark or injury was (cut, abrasion or bruise) and the part of the body on which it appeared.  She also made clear the relationship between the photographs, in terms of which were closer images of the same injuries shown in other photographs.  And it is clear enough from the photographs themselves what they depict.  Each bruise or abrasion has a scale placed against it in the photograph, and each photograph is labelled on the back indicating, for example, “mark left side” or “close up view mark left side”.  The photographs of limbs and torso might have been culled, but given their relative innocuousness, I do not think that the greater number meant any unnecessary prejudice.

[20] The learned judge’s direction emphasised the need for caution against allowing any reaction of revulsion to overwhelm clinical assessment of the evidence.  The reference to assault, it seems probable, was a reminder to focus on the task of considering whether the charge of murder had been made out, rather than being deflected by the individual injuries that Mr Planas had sustained.  No objection was taken to either photographs or video tape at the trial.  Their admission into evidence did not occasion any miscarriage of justice.

The hostile witness ruling

[21] Colin Mow had, as already mentioned, denied hearing any other noise besides Ms Morseu’s voice, although in his statement to police, he had referred to two voices, one of them male, and said he had heard banging noises coming from Ms Morseu’s house.  On the strength of that difference between his statement and his evidence, the Crown prosecutor applied for, and was given, leave to cross-examine Mr Mow on a voir dire.  She asked whether it was possible that he had heard more than one voice, and he said that it was.  He was shown his statement and agreed to the passages in which he had referred to hearing various banging noises.  He also agreed that the prosecutor had read the statement to him over the telephone eight days previously (since he did not have it with him), and he had indicated that it was accurate. 

[22] The prosecutor sought leave to cross-examine Mr Mow before the jury as hostile, but the trial judge pointed out that she would have to “go further” to have Mr Mow declared hostile, and the application was not proceeded with.  Instead, the jury was called back and the examination-in-chief continued.  The prosecutor, without objection from defence counsel, confirmed with the witness that he had refreshed his memory from his statement, and asked again how many voices he had heard.  He said that he had heard two: they were those of Ms Morseu and the white male (Mr Planas) whom he knew to be staying at the house.  He recognised the latter’s voice because he had heard it the preceding night.  Apart from that, he heard two bangs, the voice of the white male again, and the slamming of a door.  He had never spoken to the appellant and did not know his voice. 

[23] At that point the prosecutor again asked for the jury to be sent out and renewed her application to have Mr Mow declared hostile.  Mr Mow in his police statement had said he did not know whose the male voice was; in particular, he was unable to say whether it was Mr Planas’ voice.  The learned judge indicated that the prosecutor should examine Mr Mow further on the voir dire.  She did so, drawing his attention to the passage in the statement where he had indicated he was unable to say that the voice he heard yelling was “the white guy’s voice”.  He was asked why he had said in evidence that it was, and why he had also said earlier that the only voice he heard was Ms Morseu’s; his response was that it had “been a while for me to remember all this”. 

[24] Cross-examined by defence counsel, Mr Mow agreed that this was the first day on which he had been able to read through his statement.  Asked whether he thought now that it was “the white guy’s voice” that he heard, he answered first, “Oh, I was pretty sparked [apparently meaning intoxicated] at the time when I heard that so, yeah”, then agreed that he was “not really sure”.  Defence counsel, ending cross-examination there, observed that the evidence was in line with what the witness had said in his statement.  The learned judge ruled at that point:

“Well, the point of his statement is really to hear – to give evidence of what he heard in a very short period of time.  He gave this statement one day after the events and obviously very aware of the critical nature of the questions that were being asked of him in preparation of a statement and I find that his evidence-in-chief before the jury just – is – is different.  So I’m – I’m of a mind to declare him hostile and allow the Prosecutor the opportunity to cross-examine.”

[25] Mr Mow was then cross-examined by the prosecutor in front of the jury.  She put to him the relevant parts of his police statement in which he said that he had heard two voices yelling, one which he recognised as Ms Morseu’s, the other, a male’s voice; that he could not identify the male’s voice and in particular could not say that it was the “white guy’s” voice; and that he heard muffled banging and two big bangs, the noise sounding like someone “getting thrown around a bit”.  He accepted that he had said all of those things in his statement.  The paragraphs of his statement that dealt with what he had heard that night were read to the jury.  The whole of the statement was made an exhibit.  The learned judge told the jury members that they were entitled to read it in its entirety, and he encouraged them to do so.

[26] Counsel made a number of complaints of the ruling that the witness Colin Mow was hostile and the admission of his statement into evidence.  First, she said, the learned judge erred in exercising his discretion because he failed to undertake a proper assessment of the witness’ attitude to testifying truthfully.  He should have considered the witness’ explanation for the change in his evidence, namely, the passage of time and his intoxication, both when he heard the noises emanating from Ms Morseu’s house and when he gave his statement to the police.  Secondly, the finding that the witness was “obviously very aware of the critical nature of the questions that were being asked of him” was not open on the evidence.

[27] Thirdly, it was said, even if the witness were properly declared hostile, the statement should not have been tendered.  Section 18 of the Evidence Act 1977 (Qld) governed the situation.  It provides:

“(1)If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it.

(2)However, before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement.”

The section did not, counsel submitted, permit tender of a statement or parts of it unless the witness did not distinctly admit them.  Under cross-examination, Mr Mow had agreed with everything put to him by the prosecutor. 

[28] The consequence of the admission of the whole statement was that prejudicial evidence had been put before the jury.  In it, Mr Mow described seeing Ms Morseu at the hotel with a young Islander man with short dreadlocks (a description which, judging by his police photograph, fitted the appellant).  Mr Mow said he had a minor argument with Ms Morseu and asked one of the security staff to intervene.  His statement continued:

“I remember when I said this that the guy with the dreadlocks started walking towards her and me.  I was a bit worried because I thought the lad with the dreadlocks was gonna start something with me but he didn’t.  He didn’t say anything to me and he just stood there staring at me.  I remember that I just walked away from both of them and ended up finishing my drink.”

Counsel submitted that in circumstances where the issue for the jury was the intent with which the appellant inflicted the injuries on Mr Planas, evidence showing a propensity to act aggressively was highly prejudicial.  The jury was not given any direction about what use might be made of the evidence.  Instead, the trial judge had, when the statement was tendered, encouraged the jury to read the whole of it and, in summing up, had adjured them again, “in fairness and in accordance with your duty, [to] read the whole statement”.

[29] Counsel’s argument that no part of the police statement should have been admitted raised the question of whether s 18 of the Evidence Act had any application or whether s 17 alone applied.  It provides:

“(1) A party producing a witness shall not be allowed to impeachthe credit of the witness by general evidence of bad character but may contradict the witness by other evidence, or (in case the witness in the opinion of the court proves adverse) may by leave of the court prove that the witness has made at other times a statement inconsistent with the present testimony of the witness.

(2) However, before such last mentioned proof can be given, thecircumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement.”

In R v Booth[1] the English Court of Appeal was considering provisions of the Criminal Procedure Act 1865 (Eng) in very similar terms to the Evidence Act sections.  The Court observed that the equivalent of s 17 applied to hostile witnesses, the equivalent of s 18 to cross-examination of the other party’s witnesses.  It seems to me that the same analysis applies equally for the Evidence Act provisions.  Section 17 permits proof, once leave is given, of the inconsistent statement of a hostile witness, which then, by virtue of s 101, becomes admissible as evidence of the facts stated in it.  Section 18 is an entirely different mechanism, and has no application to the situation where the court has formed the opinion that the witness is adverse.

[30] An adverse (or hostile) witness is one who is

“unwilling, if called by a party who cannot ask him leading questions, to tell the truth and the whole truth in answer to non-leading questions –  to tell the truth for the advancement of justice.”[2] 

In exercising the discretion to declare a witness hostile, the court may have regard not only to the demeanour of the witness but to previous inconsistent statements; although

“not every witness who testifies inconsistently with an earlier statement can properly be regarded as hostile . . .”[3]

[31] Mr Mow certainly shifted in his evidence, from having said in his statement that he had heard two voices, one of them male and not Mr Planas’, to saying that he had heard only Ms Morseu’s voice, and then that he had heard two voices, one of them Mr Planas’.  But the learned judge did not make any finding about his demeanour, and he was not shown to have had any interest in the outcome of the case.  There was not any basis in the evidence on which to conclude that he was deliberately being unhelpful, as opposed to having a poor recollection, and having made some rather confused attempts under cross-examination to expand on his evidence when pressed by the prosecutor.  The finding that Mr Mow’s evidence-in-chief was different from what he had said in his statement was not of itself sufficient to warrant a declaration of hostility.

[32] Even had the hostile witness ruling been correctly made, it did not follow that the entire statement to the police should have been admitted.  In Price v Bevan,[4] s 27 of the Evidence Act 1929 (SA), which is in almost identical terms to s 17, was under consideration.  Bray CJ discussed what was meant by the term “statement”:[5]

“Next, what is allowed to be proved is a prior inconsistent statement and I understand by that some precise form of words related to the issues of the case.  I do not think that ‘statement’ is used in the loose sense in which a solicitor speaks of the whole document he has prepared as the witness’s proof as a statement by the witness.”

Walters J agreed with that interpretation of s 27.  I think, with respect, given the purpose of s 17 and s 27 of the South Australian Act, that that view must be correct.  Only those actual statements inconsistent with the witness’ evidence were admissible; the whole of the police statement should not have been tendered.  And, as counsel for the respondent here pointed out, once Mr Mow admitted to the previous statements, the prosecutor had succeeded in proving them and there was not any real need for the tender of the written document.

[33] But the fact that Mr Mow’s previous statement was admitted in both oral and written form does not matter; the question is whether there was any prejudice to the appellant in the whole of the written statement being admitted into evidence.  What is pointed to as damaging is the passage set out at paragraph [28] above.  But the appellant was not in fact said in that passage to have acted aggressively towards Mr Mow; indeed, Mr Mow’s statement made it clear that he refrained from acting at all.  Although I have reached the view that there was not a sufficient basis for the ruling of hostility, and that, in any event, only the inconsistent statements by Mr Mow could properly have been admitted, I do not think any prejudice to the appellant resulted, because the statement did not reveal a propensity to aggression on the appellant’s part.  It follows that no direction was needed; and, not surprisingly, none was sought.

The record of interview, right to silence, lies and consciousness of guilt

[34] Counsel submitted that the jury should not have had placed before it that part of the appellant’s interview in which he refused to answer further questions having taken advice from a Legal Aid office lawyer.  It was prejudicial and had no probative value.  The jury was not cautioned against using his refusal to answer further questions to infer guilt.  There were also lies told to the police in the interview about how the appellant had sustained a cut to his forehead and about when and in what circumstances he left his aunt’s house.  The jury was not directed as to how it should approach the issue of lies and there was a risk that it might have inferred a consciousness of guilt of murder when, at best, the lies were equally consistent with guilt of manslaughter.  In a similar vein, the jury should have been given a direction about use of the evidence of an attempt at cleaning the kitchen floor of blood, as revealing a consciousness of guilt.

[35] The evidence that the appellant had desisted on legal advice from answering further questions was, in my view, inadmissible.  It did not prove anything.  One can imagine, however, that defence counsel may have refrained from objecting to it because it was thought better that the jury not be left with a sudden, unexplained cessation of the interview.  It would have been evident that the appellant had answered a number of questions and then stopped.  Counsel may well have preferred that it be made clear to the jury that the appellant, an uneducated man, was acting on the instructions of a lawyer in deciding not to proceed with the interview.  And counsel might reasonably have thought, too, that it was better to leave matters there than to labour the point by asking his Honour to give a direction about the right to silence.  I do not think that course of events occasioned any miscarriage of justice.

[36] Defence counsel did not seek any direction about lies.  In fact, he submitted to the jury that, from his appearance in the tape of his interview with police, the appellant was obviously intoxicated.  A blood alcohol reading taken after he had been in custody for eight or nine hours suggested that his blood alcohol level during the interview was probably in excess of .15 ml.  His intoxication had caused him to give rash and unreliable answers.

[37] The prosecutor had originally intended to suggest that the appellant had told lies out of a consciousness of guilt, but she abandoned that approach when defence counsel indicated that he was “conced[ing] manslaughter”, so that the only issue was intent.  In the event, she confined her submissions on the point to urging the jury to reject the appellant’s account in the interview as untruthful.  She also suggested that the appellant was the person who attempted to clean the kitchen, but that was not relied on as manifesting any consciousness of guilt; rather, it was to show that he was more capable and less intoxicated than the defence suggested.

[38] In the summing-up, the learned trial judge reminded the jury that the appellant had falsely denied having any fight with Mr Planas or going to his room.  He continued,

“So there’s no need to dwell on that.  You’re aware that in the record of interview he changed those denials to say what you would now have regard to as his version of the events.” 

After the jury had retired, the prosecutor raised with the learned judge whether he was minded to give a Zoneff direction[6] in relation to the lies.  His Honour said that he was not, and counsel for the defence did not support the prosecutor’s suggestion. 

[39] This was plainly not a case for an Edwards direction.[7]  The Crown had not argued that the lies demonstrated a consciousness of guilt, and it would have been most unfortunate to introduce the notion.  A Zoneff direction might have been given, but counsel did not ask for it.  It is reasonable to suppose that he thought his client’s interests would be better served if the question of lies were left alone and the jury’s attention was not diverted from his submission to them that the appellant was intoxicated at all relevant times, and in consequence was answering foolishly during the interview.  It was a legitimate forensic approach.  In those circumstances, I would not accept that the failure to direct on lies was an error or caused any miscarriage of justice.  The cleaning of the kitchen, relied on by the Crown as militating against the intoxication thesis, did not require any direction.

The trial judge’s direction on use of circumstantial evidence

[40] By way of circumstances from which they could infer an intent to cause death or grievous bodily harm, the prosecutor directed the jury to the number of injuries, the force applied and the fact that Mr Planas had probably been kicked in the head while on the ground.  Counsel for the appellant said that the learned judge’s direction on the issue was inadequate, because he did not remind the jury that it had to be satisfied that an intention to kill or to do grievous bodily harm was the only reasonable inference that could be drawn from the circumstantial evidence.  Another reasonable inference was that the appellant assaulted Mr Planas with no intention to achieve a particular result.

[41] The learned judge early in his summing-up explained the process of drawing inferences from circumstantial evidence.  In so doing, he cautioned:

“However, there is one qualification, and it’s an important one.  To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but that it should be the only rational inference you can draw from the circumstances.  So often times you look at the circumstances as you find them to be and it might admit of a number of reasonable conclusions.  But to convict, based on that type of evidence, you have to come to the view that the only rational conclusion is the one that leads to guilt.

So if, after considering all the circumstantial evidence, there was any reasonable inference consistent with innocence, it is your duty to find the defendant not guilty, and that really is simply a requirement that guilt must be established beyond reasonable doubt.”

[42] Later, in dealing with intent he said this:

“What a person intends is something that you must necessarily infer from all the circumstances surrounding his actions as you find those circumstances to be.

The prosecution points to the severity of the defendant’s assault – the number of blows, the force, et cetera – and the time over which it must have taken to deliver those blows.  They rely also on the way in which the defendant behaved afterwards – the cleaning up, the removing of clothes and so on – all of which suggests that there was at the time – I'm sorry, I shouldn't have said – it’s not part of the prosecution’s – they look at the nature of the assault and its duration and its location to suggest there was at least an intention to do grievous bodily harm.”

[43] His Honour referred to the evidence of intoxication and said:

“If, because of the evidence as to the effect of intoxication or otherwise you are not satisfied beyond reasonable doubt that the defendant did, in fact, form the relevant intent, then you must find him not guilty of murder.”

He went on to explain that intoxication of itself would not necessarily result in a verdict of not guilty, because an intoxicated person might still form the relevant intent, and concluded on the point:

“So, putting it in context, it is for the prosecution to satisfy you beyond reasonable doubt that, although intoxicated, the defendant did have that relevant intention.  If the prosecution fails to satisfy you of that beyond reasonable doubt, or if you are left in doubt about it, you must find the defendant not guilty of murder, but it would then be open to you to find him guilty of manslaughter.”

[44] The learned judge ended his directions on the circumstantial evidence on this note:

“So the case from the defendant’s point of view is really based on circumstances, and it is argued that those circumstances are inherently unreliable.  That being the case, you will at least retain some doubt about these matters of whether the defendant was capable, or, indeed, formed the relevant intention.  If you are not satisfied, or if you are left in doubt, then your proper verdict would be not guilty of murder, but guilty of manslaughter.  If you are so satisfied beyond reasonable doubt, then your proper verdict is guilty of murder.”

[45] Only one alternative inference to that of an intent on the appellant’s part to do at least grievous bodily harm was suggested by anyone at the trial: that the appellant was too intoxicated to form the necessary intent.  That hypothesis was fairly put to the jury.  The learned judge had already explained that if there were any reasonable inference from the circumstantial evidence consistent with innocence, it should find the appellant not guilty, consistent with the requirement of proof of guilt beyond reasonable doubt.  The only significance that circumstantial evidence ever assumed in the case was in relation to the question of intent.  I do not think it was incumbent on his Honour to repeat the direction, particularly when he was not asked to do so.

The direction on the onus of proof

[46] Counsel referred to this direction:

“Also, you have heard that the defendant left school at year 11.  He has not had full-time employment since then but appears to have survived on social security payments, and notwithstanding that he appears to have spent – certainly on the weekend you have been concerned with – a considerable amount of money on alcohol and taxi fares, again, you must be careful not to allow any view you have about that type of lifestyle to colour your assessment of his version of events as he recounted them to the police officers.  You need to weigh up the content of what he said, assess its reasonableness, its reliability, against the other evidence you accept as being correct.  In other words, you must approach your duty dispassionately and move away any sense of sympathy, prejudice, or whatever, and decide on the facts on the whole of the evidence.”

It was said that this amounted to an invitation to the jury to compare the appellant’s version in his interview with other evidence in the case.  The trial judge should, it was said, have gone on to explain that even if the jury rejected the appellant’s version, the prosecution retained the onus of proof.

[47] I do not think that the paragraph complained of amounted to more than his Honour’s warning the jury against allowing prejudice to colour their view of the only version of events that existed for the defence.  The learned judge had earlier given a direction, in entirely conventional terms, to the effect that the appellant was not obliged to give or call evidence; that the fact he did not give evidence did not add in any way to the case against him; and that the prosecution retained the responsibility of proving his guilt beyond reasonable doubt.  He reiterated that there was no burden on the appellant to establish his innocence and that he was entitled to a presumption of innocence unless and until the jury returned the verdict of guilt.  In the context of those very clear and careful directions, it seems most unlikely that the jury was left under any impression that a rejection of the version given in the interview would lessen the onus on the Crown to prove its case.  Counsel for the defence clearly experienced no such concern, because no re-direction was sought.

The reasonableness of the verdict

[48] Counsel for the appellant said that the verdict was against the weight of the evidence.  The evidence showed that the deceased had been punched and then probably kicked while he was on the ground.  He had died from aspiration of blood, having been punched in the face; the subdural and subarachnoid haemorrhages were likely to have been sustained when he fell.  Although he had suffered a deep seated brain injury, that would not have been apparent to the appellant.  A verdict of murder could not be supported because the jury could not have been satisfied that the circumstantial evidence about the injuries was only consistent with an intention to do grievous bodily harm or to kill.

[49] In my view, the jury was entitled to take a view of the injuries inflicted on Mr Planas as leaving no room for a rational possibility that the appellant had not meant to do at least grievous bodily harm to him.  The contention that the verdict was against the weight of the evidence (or was in any other way unreasonable) must be rejected.

[50] I would dismiss the appeal.

[51] MULLINS J:  I agree with Holmes JA. 

[52] PHILIPPIDES J:  I agree that the appeal should be dismissed for the reasons stated by Holmes JA.