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R v Boscaino[2020] QCA 275

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Boscaino [2020] QCA 275

PARTIES:

R
v
BOSCAINO, Roberto Vincenzo
(appellant)

FILE NOS:

CA No 14 of 2020

SC No 493 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 20 December 2019 (Lyons SJA)

DELIVERED ON:

8 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2020

JUDGES:

Sofronoff P and Morrison JA and Brown J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –GENERAL PRINCIPLES – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by a jury after a trial of one count of murder and pleaded guilty to one count of interfering with a body – where most of the facts in the case were either unchallenged or were the subject of admissions, including formal written admissions – where the appellant gave evidence at his trial – where there was evidence given against the appellant by a police informant – where the appellant accepted the truth of most of what the police informant attributed to him – where the only substantive part of the evidence that the appellant did not accept concerned his complicity in the actual murder – where the appellant submits that the verdict is unreasonable or cannot be supported having regard to the evidence led at the appellant’s trial – whether the verdict is unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted by a jury after a trial of one count of murder and pleaded guilty to one count of interfering with a body – where the appellant initially lied to police – where at trial the appellant gave evidence that he had initially lied to police to conceal his true involvement as an accessory because he was afraid that he would not be believed if he told the truth – where other post-offence conduct included all of the other acts of the appellant to hide the killing of the deceased – where the learned trial judge directed the jury regarding their reliance upon the defendant’s post-offence conduct as proof of his consciousness of guilt of the offence of murder – where that direction favoured the defence, no objection to it was raised and no redirection was sought – where the appellant now appeals against that direction – whether the learned trial judge’s directions amounted to misdirections – whether a miscarriage of justice attended the appellant’s trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted by a jury after a trial of one count of murder and pleaded guilty to one count of interfering with a body – where the appellant gave evidence at his trial – where there was evidence given against the appellant by a police informant – where the appellant accepted the truth of most of what the police informant attributed to him – where the only substantive part of the evidence that the appellant did not accept concerned his complicity in the actual murder – where the learned trial judge directed the jury about the use of the defendant’s confessional statements – where the appellant submits that in cases in which the prosecution relies upon confessional evidence, the jury must be directed that before they can act upon that evidence they must be satisfied of two things: that the confession was made and that it was true – where the appellant submits that these misdirections have caused a miscarriage of justice – whether the learned trial judge’s directions amounted to misdirections – whether a miscarriage of justice attended the appellant’s trial

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited

R v Burns (1975) 132 CLR 258; [1975] HCA 21, distinguished

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited

COUNSEL:

B J Power for the appellant

D L Meredith for the respondent

SOLICITORS:

Jasper Fogerty Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  A jury found the appellant guilty of the murder of Samuel Thompson.  He has appealed against his conviction on three grounds:
    1. (a)
      That the verdict of the jury was unreasonable or unsupported by the evidence;
    2. (b)
      That a miscarriage of justice occurred as a result of directions given to the jury regarding reliance upon the defendant’s post-offence conduct as proof of his consciousness of guilt of the offence of murder; and
    3. (c)
      That a miscarriage of justice occurred as a result of directions given to the jury regarding the defendant’s confessional statements.
  2. [2]
    Most of the facts in the case were either unchallenged or were the subject of admissions, including formal written admissions.  Thompson and the appellant were both dealers in cannabis.  Thompson, the appellant and a man named Ashley Dyball were acquaintances.  In early March 2017 Thompson encountered difficulties in getting a supply of cannabis for resale at a price that was acceptable to him.  Thompson arranged to meet the appellant at the Breakfast Creek Hotel on 6 March 2017 in order to see if the appellant could supply him with cannabis at the right price.  After spending some time together at the hotel, the two of them went to Thompson’s apartment nearby.  As they approached Thompson’s front door, Thompson pointed out to the appellant the presence of a security camera.  The recording shows that the appellant was then wearing a “New York Knicks” cap.  Inside Thompson’s apartment they agreed that the appellant would supply Thompson with 10 pounds of cannabis in exchange for $30,000.  The security camera outside Thompson’s apartment recorded the appellant’s departure.  He was carrying a plastic shopping bag.
  3. [3]
    The appellant lived in a house on Griffith Street, Bald Hills.  A security camera installed at a tavern across the street from the appellant’s home recorded the arrival, at the appellant’s home at 9.29 am, of a Chrysler car which belonged to Dyball.  Thompson then arrived in his distinctive orange Mustang.  That car was equipped with a GPS tracker, from which police were later able to obtain data about where the car had been.  That data showed that the orange Mustang was in the appellant’s back yard at 10.46 am.
  4. [4]
    It was accepted at the trial that Thompson had been murdered at the appellant’s house.  The medical evidence showed that he had been strangled or hit with sufficient force in the throat that his larynx and hyoid bone had been fractured.  He had also been hit across the face with a small axe, described as a “Fiskars Tomahawk”, and this blow broke various bones.  Either of these injuries might have killed Thompson but it was not possible to say which of them had done so.  It was common ground at the trial that the appellant and Dyball put Thompson’s body into a large toolbox that was bolted to the tray of the appellant’s utility.  They then drove the body to Beerburrum State Forest where they buried it together with the appellant’s Fiskars Tomahawk.  On the way home, the appellant and Dyball disposed of some incriminating evidence at a park in Clontarf and then returned to Griffith Street at 1.26 pm.
  5. [5]
    At 1.45 pm, the security camera at the tavern across from the appellant’s house recorded the appellant driving Thompson’s Mustang away followed by Dyball’s Chrysler.  As it later emerged, the appellant drove the Mustang to a carpark nearby at Deep Water Bend in Bald Hills where he left it and Dyball then drove him back home.  At 3.21 pm the tavern camera recorded the appellant driving away in his utility, accompanied by Dyball.  They took with them three garbage bags in the back tray containing incriminating evidence.  They went to the Nudgee Refuse Station where other cameras recorded Dyball throwing two of the garbage bags into the tip and the appellant throwing the third bag.  They then returned to the appellant’s house.  Video cameras showed that that night the appellant went out to the Treasury Casino with his friend and fellow drug dealer, Logan McLean, where they shared drinks.
  6. [6]
    On the following morning, at about 8 am, the appellant arranged for a mowing service, Justin’s Mowing, to mow the grass around his house.  The tavern camera recorded Dyball’s Chrysler coming and going from the appellant’s house.  Then the two men went to Deep Water Bend where they picked up Thompson’s Mustang.  The appellant drove the Mustang and Dyball followed him in his own car.  The appellant found a pair of Thompson’s sunglasses in the car and put them on.  In this procession, successive cameras recorded their journey from Bald Hills, through Brisbane and Logan, toward the Gold Coast.  At about 4 pm the appellant parked the Mustang some distance away from a service station at Coomera, which he entered wearing the dead man’s sunglasses and where he bought fuel in a jerry can which he used to refuel the Mustang away from prying eyes.  The convoy then continued to the Gold Coast and down to Pottsville in New South Wales.  There the appellant left the Mustang parked just south of the town and Dyball then drove both of them back to Griffith Street.  On the way home one of them flung Thompson’s car keys out of the car window onto the highway where, later, somebody found them and handed them to police.
  7. [7]
    The next day, on 9 March, the appellant sent a text to Justin’s Mowing, complaining that the person who had mowed the grass had failed to mow down the driveway and asking for that to be completed.
  8. [8]
    On the morning of 10 March, the appellant bought a toolbox which was identical to the one fitted to his utility.  He also went to a Bunnings store where he bought the same kind of Fiskars Tomahawk as the one that had been used on Thompson, some carpet cleaning liquid and 20 litres of hydrochloric acid.  A security camera recorded his departure carrying the two toolboxes in the tray of his utility.  At 3 pm on the same day he discarded his old toolbox at the Nudgee Refuse Station.  The appellant had drilled out the locks on the toolbox rendering it unusable as secure storage and tried to clean the blood from it using the acid.  Towelling found in the toolbox later showed the presence of this acid.
  9. [9]
    On 11 March the appellant rented a floor sander.  The garage at his home had a wooden floor and, by the time police came to inspect it, the floor had been sanded back.  The appellant had sanded it to remove blood stains.
  10. [10]
    Thompson’s father had reported his son’s disappearance to police.  As part of their investigation police began to interview Thompson’s acquaintances and, accordingly, on 14 March they interviewed the appellant.  He admitted to them that he knew Thompson and also that he knew that Thompson was a drug dealer.  He also told them that:
    1. (a)
      he had recently sanded the floor of his garage to get rid of oil stains;
    2. (b)
      he had last seen Thompson when they had met at the Breakfast Creek Hotel on either Monday 6 March or Tuesday 7 March.  He had taken the afternoon off so that he could meet Thompson because he had not seen him for a while;
    3. (c)
      the appellant noticed that “he had a couple of baseball caps that were mine that he must have picked up from me previously.”  There was a “New York Knicks” cap and a “Make America Great Again” cap.  The appellant said that he took these caps with him;
    4. (d)
      the appellant had not seen Thompson since then;
    5. (e)
      the appellant had never seen Thompson and Dyball together;
    6. (f)
      Thompson had only been to his house twice.  The first time had been in the previous year but he had not entered the house itself.  The second time had been three weeks previously when he had stayed for about an hour; and
    7. (g)
      Thompson had never parked his Mustang in the appellant’s back yard or his driveway and he was “certain about this”.
  11. [11]
    The appellant accepted that the matters in sub-paragraphs (a), (b), (d), (e), (f) and (g) were lies.  He also asserted that (c) was a lie, as will appear.
  12. [12]
    Police placed the appellant under covert surveillance.  On 15 March, police saw the appellant dumping three garbage bags into a refuse bin at Nudgee Cemetery.  Inside these bags police found the key to the appellant’s toolbox, the sunglasses belonging to Thompson which the appellant had worn while driving the Mustang, the appellant’s receipt for the new toolbox, a diary containing the appellant’s fingerprints, the shirt he had worn while disposing of the Mustang and a piece of carpet which bore the word “Boscaino” on its reverse side as well as Thompson’s DNA deep within the pile.
  13. [13]
    After the appellant was arrested, he was placed on remand where he encountered a man who was also on remand awaiting trial for stalking, fraud and domestic violence charges.  This man, Michael James Earwaker, said in evidence that the appellant had approached him saying he was finding it difficult to cope and that he wanted to talk.  He said that he had been accused of murder and that he was fearful that his partner would abandon him.  Earwaker had seen a news report about the discovery of Thompson’s car near Pottsville but, otherwise, he claimed to know nothing about the case.  Earwaker said that, over the course of several conversations, the appellant disclosed to him that Thompson had come to his home where he had met the appellant and Dyball.  They were in a room “at the back of a garage” in a room “they called … a game’s room where they were playing either Playstation or Xbox”.  The appellant described to Earwaker the layout of his house.  The appellant told him that “[i]t occurred at the backyard” and later changed this to say “it happened in the garage”. The appellant said that his utility was “pretty much reversed up but beside the pool in front of the house” while Dyball’s car was out on the road.  Thompson’s car was at the back of the house.  The appellant told him that he owned a red Triton utility.  He said that “they were going to take his money”.  Earwaker said that appellant drew a diagram in order to explain these happenings.  The paper on which the diagram was drawn bore the appellant’s fingerprints.  Earwaker said that the appellant told him that “they went to the rear of the victim’s car, there was [sic] a scuffle took place, that the victim was hit” by Dyball “with an object”.  Thompson fell under the rear of the car on the driver’s side and they “basically panicked somewhat, then they’ve carried the body …into the garage”.
  14. [14]
    The diagram showed the location of Dyball’s car, the appellant’s utility and Thompson’s Mustang.  It showed the location of the body near the garage.  The diagram showed the location of the rooms inside the house and the external features of the building with reasonable accuracy.
  15. [15]
    Earwaker said that the appellant had told him “just that the victim was leaving, they were going to take his drugs and money”.  They followed Thompson outside where he “was then struck, fallen, and the body was carried into” the house.  Earwaker said that “they got an axe from in this cupboard” and “the body was struck in the mouth, the neck, and the upper abdomen”.  According to Earwaker, Dyball told the appellant to get the axe and Dyball had then hit Thompson with it.  He had then handed the axe to the appellant who also struck Thompson.  The appellant said that “it was sickening” and that he had wanted to vomit.  The appellant told Earwaker that they had taken a piece of carpet, put the body onto it and in this way dragged it to the utility.  They put the body into the toolbox on the utility and took it to Beerburrum State Forest where they buried it.  They then drove back to Brisbane.  On the way they stopped at a park on the “right-hand side of the Hornibrook Bridge” in Redcliffe and “disposed of the weapon in a plastic bag”.  Earwaker said that the appellant told him that they had then taken the Mustang to a fishing area and left it.  This description was consistent with Deep Water Bend.  The appellant told him that Dyball had instructed him to buy acid and use it to get rid of any evidence of blood in the toolbox.  He said that the appellant told him that he disposed of the carpet at “a cemetery at the Geebung area” and the toolbox “at a dump in the same vicinity”.  They left the Mustang “somewhere in New South Wales”.
  16. [16]
    The appellant accepted the truth of most of what Earwaker attributed to him.  The only substantive part that he did not accept concerned his complicity in the actual murder.
  17. [17]
    Earwaker said that the appellant was an “absolutely emotional wreck and not coping”.  He told Earwaker that the Crime and Corruption Commission had interviewed him for two days and that he believed that Dyball was “pointing the finger at him”.  He said that “Ashley Dyball played just as much part as he did.”  He told Earwaker that the appellant had handed the axe to Dyball and that Dyball had “also made him use the axe on the body as well”.
  18. [18]
    Apart from the admissions in Earwaker’s evidence, the Crown case was a circumstantial one, but it was one in which almost every primary fact proved by the evidence as part of the circumstantial case was accepted by the defence leaving only the ultimate inference to be drawn as the subject of challenge.
  19. [19]
    The controversial facts were in two categories.  First, and most significantly, the Crown asserted, and the appellant denied, that Earwaker’s evidence of the appellant’s admissions to murder was true.  Second, the Crown case invited the jury to accept that when Thompson was present at the appellant’s house he had brought with him the money to pay for the drugs.  This furnished the motive for the murder, which was to conceal the robbery.  The appellant’s case was that he had been paid for the cannabis when he was at Thompson’s home and that he had taken the cash away with him in the plastic bag that he was carrying when he left.  There was, therefore, no need for a violent robbery to get the money.  It will be recalled that the appellant had told police that he had seen two of his caps in Thompson’s apartment and had taken them with him in a plastic bag when he left Thompson’s apartment.  At the trial he said the bag had actually contained the money for the drugs.
  20. [20]
    At the start of the trial the appellant pleaded not guilty to murder but guilty to being an accessory after the fact to Thompson’s murder.[1]  The Crown did not accept the plea to the lesser charge.
  21. [21]
    The appellant gave evidence.  He admitted knowing Thompson and also that he had known Dyball for many years.  He said that Dyball was a bodybuilder and he dealt in cocaine and MDMA.  The appellant believed that at some point in his life Dyball had gone to Syria fight “against ISIS”.  Dyball told the appellant that while he was in Syria he had killed “about 10 people”.  He had heard that Thompson had been the victim of a robbery during which he had cash that had been taken.  Also, on one occasion his Mustang had been stolen but recovered and another time he had been cheated out of a supply of drugs for which he had not been paid.  He recounted how he had met Thompson at the Breakfast Creek Hotel and how they had then gone to Thompson’s apartment where they had agreed that the appellant would supply Thompson with 10 pounds of marijuana in exchange for $30,000.  He said that Thompson had immediately given him the money which he had taken away with him in a plastic bag. He said that the bag seen in the security video contained this cash and not the caps that he had told police he was carrying.  He was to deliver the drugs to Thompson on the following day.
  22. [22]
    The appellant said that he had spoken to Dyball on the day he first met Thompson and had told Dyball about his agreement with Thompson.  According to the appellant, Dyball had “mentioned that he hadn’t seen Sam in a while and like [sic] to catch up”.
  23. [23]
    On the following day Dyball arrived at the appellant’s home first.  Thompson then arrived and parked behind the house “as he always gets a lot of attention from the pub across the road as it’s a … new mustang car… They were pretty rare at the time”.  Thompson checked the marijuana and “was happy with it”.  The three of them smoked some of it together.  Thompson then said that he had to leave and Dyball said, “You know what?  I might go as well.”  They left the house and the appellant remained and “smoked a little bit more cannabis” and then “decided to do a bit of a clean-up, as we had a few drinks”.  He then “heard a noise” and went outside to Thompson’s car.  He said that he went to the passenger side of the car and saw Dyball inside.  He knocked on the window and said, “Where’s Sam?”  Dyball said, “Have a look at the back.”  The appellant looked behind the car and saw Thompson’s “legs lying underneath”.  He said, “What’s Sam doing?” and Dyball replied, “I’ve knocked him.  I’ve just had to do it.”  The appellant said that he asked, “Why did you do this?” and Dyball replied, “You’ve seen this now, so you’re in it.”  The appellant said that he replied, “This is your drama.  I want no part of this.”  Dyball said, “What do you think is going to happen if you don’t help me?”  The appellant said that he regarded this statement as a threat “like, I could have been next”.  Dyball said, “We’ve got to get rid of the body” and the appellant said that he replied, “I don’t want any part of this”.  He said Dyball then punched him in the face.
  24. [24]
    The appellant said that at Dyball’s direction he fetched a bag and they put Thompson’s body into it and took it “all the way into the front of the south west room, and the garage”.  His feet were in the entry of the garage and his head was “out the front of the games room in the hallway”.  Dyball collected the belongings in Thompson’s pockets and then said that they would put the body into the toolbox on the back of the appellant’s utility.  Dyball emptied the toolbox and the appellant said that he then came back into the house carrying the appellant’s tomahawk.  The appellant asked, “What are you doing with that?” and Dyball answered that he was going to “confirm the kill”.  Dyball then swung the axe into Thompson several times.  The blood began to seep out of the bag and the appellant got a piece of carpet onto which they put the bag containing the body.  They then dragged the carpet and body to the side of the utility and loaded the bag into the toolbox.  They drove to the Beerburrum State Forest where, using the appellant’s shovels, they buried Thompson.  On the way home they threw Thompson’s phone into the sea at Redcliffe and disposed of bags containing evidence.  The appellant then began to clean the blood from the floor and from the wall opposite the games room and in the garage.
  25. [25]
    The appellant said that, after parking Thompson’s Mustang away from the murder scene, Dyball then “talked about the cannabis”.  He said, “Look, I … don’t want to sell this.  So I’ll sell it to you.”  The appellant replied, “I don’t have much money”.  He admitted that he had about $20,000 and gave that sum to Dyball.  That night, as security camera recordings showed, he went with McLean to the Treasury Casino.  On the following days he got rid of further evidence in the way that has already been related.
  26. [26]
    The appellant admitted that much of what Earwaker had attributed to him was correct.  It would have been impossible for him to maintain a credible denial for Earwaker had related things that he could not have known unless the appellant had told him.  However, he denied that he had admitted to planning to rob Thompson and he denied that he had played any part in the killing.  He denied that he had drawn the diagram and said that Earwaker had drawn it.
  27. [27]
    The appellant said that he had initially lied to police to conceal his true involvement as an accessory because he was afraid that he would not be believed if he told the truth.  He was afraid that he would be “slapped in handcuffs and put in jail and accused of murder like I am now…”.
  28. [28]
    After the close of the evidence the learned trial judge asked the prosecutor to explain the basis upon which he relied upon the evidence of the appellant’s lies to police.  Mr Meredith, who was the prosecutor at the trial and also appeared on the appeal, submitted that “the lies and post-offence conduct should be seen as a whole”.  In relation to the appellant’s proffered explanation for his lies, namely his desire to conceal his lesser culpability out of fear that he would be accused of murder, Mr Meredith submitted that the totality of the appellant’s post-offence conduct, including the lies, were capable of being regarded as evidence of culpability for murder rather than the lesser offence.  He submitted:

“…this was behaviour that was out of proportion to fearing the lesser offence, as opposed to the greater offence.  That he went to so much trouble … not only are there the lies … in between there is all of those things that should be taken together.”

  1. [29]
    That the appellant lied to police was not a fact that the jury could consider in isolation as evidence of guilt of murder.  Evidence of lies, like all evidence of post-offence conduct that is said to prove the guilt of an accused, is circumstantial evidence.  Admittedly, it is theoretically possible that an inference of guilt of an offence, drawn to the requisite standard of proof, might be drawn from proof of a single fact.  However, almost by definition, a case based upon circumstantial evidence is a case in which the prosecution seeks to prove guilt by proving multiple circumstances.  For this reason, it has repeatedly been held that it is wrong for a fact finder to consider each piece of circumstantial evidence in isolation from all the rest of the circumstantial evidence; or, as the rubric has it, it is wrong to look at circumstantial evidence “piecemeal”.[2]
  2. [30]
    The circumstantial evidence in this case was constituted by so-called “post-offence conduct” from which the jury was invited to draw an inference of guilt of murder.  Sometimes this evidence is called evidence of “consciousness of guilt” and sometimes it is called evidence of an implied admission.  As long ago as 1796, in R v Crossfield[3] the expression “consciousness of guilt” was used to describe evidence of this kind.  In the trial of an alleged conspirator in a plot to assassinate King George III the trial judge directed the jury to the significance of the accused’s “flight” from England as “circumstances which do at least infer a consciousness of very great guilt, and if there be no other reason assigned for the conduct of the party, very much corroborating and supporting the charge of the particular guilt that is imputed to him” (emphasis added).  In an 1896 American textbook, the learned author wrote that the behaviour of a person who fabricates evidence or lies to conceal facts “necessarily implies an admission of their truth, and a consciousness of their inculpatory effect, if uncontradicted or unexplained”[4] (emphasis added).  Both expressions are useful, in the way that jargon is often useful, as a handy tag to refer to this kind of evidence as long as the underlying concept itself is understood and applied correctly.  Evidence that a person accused of a crime told a lie about a material fact concerning the crime is a piece of circumstantial evidence.  Circumstantial evidence is evidence which proves a fact from which another fact may be inferred.  The prosecution leads evidence about the accused’s telling of a lie because that fact raises an inference that the accused is guilty of the charged crime.  The reason why one might infer guilt is that, people being largely rational, there must have been a reason why the accused told the lie.  As was said in Crossfield, “if there be no other reason assigned for the conduct of the party” one might conclude that the circumstantial fact raises an inference of the accused’s guilt.  This is because a jury can infer that the accused’s reason for telling the lie was to hide something that pointed to the accused’s guilt and wanting to hide something that points to one’s guilt of an offence is the motivation of a guilty person.  In that sense, the lie constitutes evidence of “consciousness of guilt” because the lie proves a motivation based on guilt.  It can also be regarded as an implied admission of guilt in the sense that it is voluntary conduct by an accused that evinces guilt.
  3. [31]
    Like all circumstantial evidence, there may be competing inferences.  In the words of the usual jury direction, a lie might be told out of fear, panic or to conceal other criminal behaviour short of the alleged crime itself.  In this case, the appellant’s lies to police about his association with Thompson raised an inference that his motive for lying was to hide his involvement in murdering Thompson but it also raised an inference that his motive for lying was his fear that confessing his lesser guilt might lead to a mistaken accusation of murder.  On their own, these lies were incapable of raising an inference of guilt of murder to the required standard of proof because the opposing inference was a reasonable one.  Accordingly, her Honour instructed the jury:

“The prosecution relies on things said by Mr Boscaino as admissions tending to inculpate him.  In particular, his statement that he did not see Mr Thompson after the 6th of March when that was untrue.  There’s also his statement that he had not – Mr Thompson’s car had not been on his property and that Mr Dyball and Mr Thompson did not know each other.  Now, you’ve heard submissions from the prosecution which attributes lies to Mr Boscaino, particularly in his statement to police and his record of interview.  You will make up your own mind whether he’s telling lies, and, if so, whether he was doing that deliberately.  You know he accepts that he – he did lie.

If you conclude that the defendant deliberately told lies, that is relevant only to his credibility.  It is for you to decide whether those lies affect his credibility.  However, you should bear in mind this warning, do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that is evidence of guilt of the particular offence of which they’re charged.  The mere fact that a person tells a lie is not in itself evidence of guilt.

A person like Mr Boscaino may lie for many reasons.  For example, to bolster a true defence, to protect someone else, to conceal disgraceful conduct short of the commission of the offence charged, or out of panic or confusion.  If you think there is or may be some innocent explanation for his lies, then you should take no notice of them.  You heard Mr Boscaino’s reasons for this.  Clearly, Mr Thompson was killed in Mr Boscaino’s home and he said he just wanted the body gone as it was clear to him he was dead.  He also said that given he was a drug dealer, he didn’t think police would believe him.

You heard the explanations he gave.  So the weight, if any, to be accorded to his statements, including those statements, is a matter for you and as with the rest of the evidence, it’s a matter what weight you give to it.”

  1. [32]
    That direction was correct, it favoured the defence, no objection to it was raised and no redirection was sought.
  2. [33]
    However, the prosecution’s circumstantial case was not confined to post-offence lies.  It included all of the other acts of the appellant to hide Thompson’s killing.  Each individual inference of guilt in a circumstantial case need not itself be established beyond a reasonable doubt before a jury is entitled to draw an inference that the appellant was guilty of murder.  A jury is entitled to have regard to the whole combination of facts, none of which viewed alone could support that ultimate inference, but which taken together can do so, provided that they reach that conclusion upon the criminal standard of proof.[5]  When the lies, which on their own might be equivocal as to guilt, are considered along with all of the other post-offence conduct, as part of an assembly of facts each of which raises its own incriminating inference, then it becomes open to the jury to accept, beyond a reasonable doubt, the ultimate inference that the appellant was guilty of murder.
  3. [34]
    Moreover, this was not a purely circumstantial case.  It included the evidence of Earwaker that the appellant had made incriminating admissions to him.  The jury were entitled to have regard to that evidence as well when considering the circumstantial evidence.
  4. [35]
    Her Honour directed the jury on this aspect of the case as follows:

“Intention can be inferred or deduced from the circumstances in which the death is alleged to have eventuated, and from the conduct of Mr Boscaino before, at the time of, and after the alleged killing.  Prosecution asks you to have regard to the fact that not only did Mr Boscaino lie to police, but that he did all of those actions to dispose of Mr Thompson’s body, and to get rid of any possible evidence to cover up the killing because he was guilty of the offence of murder and not the lesser offence of accessory after the fact of murder.  So the Crown argues that because of the totality of the efforts he went to that shows, on its submission, that it was – he was guilty – he did all that knowing he was guilty of murder.

Now, I have to tell you that before you could use any of that, as indicative of guilt of murder, you would first have to find that Mr Boscaino did those things, that is, lie and do all of those actions after the death, because he knew he was guilty of the offence charged of murder and not for any other reason.  You must remember that people don’t always act rationally and that conduct of this sort can often be explained in other ways.  For example, as a result of panic, fear, or other reasons having nothing to do with the offence charged.  You must have regard to what has been said to you by the defendant and his explanation for lies, and his conduct.

You heard him say the killing was at his home.  He was in fear of Mr Dyball, and coerced into assisting by threats.  He didn’t believe the police would believe him.  All of those matters can be considered by you in deciding whether you can safely draw any inference from the fact of his lies and his post offence conduct.  Moreover, before the evidence of those actions and those lies can assist the prosecution, you would have to find not only that it was motivated by a consciousness of guilt on his part, but also that that was – that what was in his mind was guilt of the offence charged of murder and not some other misconduct such as accessory after the fact to murder.

If and only if you reach the conclusion there is no other explanation for his actions, such as fear or panic, are you entitled to use that finding as a circumstance pointing to the guilt of Mr Boscaino of murder to be considered with all the other evidence in the case.  Standing by itself it could not prove evidence – not prove guilt of murder.”

  1. [36]
    In my respectful opinion that direction correctly reflected the authorities on the subject.
  2. [37]
    The appellant argues that the first direction given about the lies was inconsistent with the second direction, about the use of the lies together with the other post-offence conduct.  This submission should be rejected.  The first direction about lies was correct so far as it dealt with the use of lies for the limited purpose of assessing credit.  The appellant did not submit the contrary.  The appellant submitted that that direction sought to limit the use that the jury could make of the evidence of lies but that the second direction then, inconsistently and erroneously, permitted their use as circumstantial evidence of guilt.
  3. [38]
    The second direction did not conflict with the first direction.  The lies could be used as evidence that bore upon the appellant’s credit but the fact that they could be used for that purpose did not mean that they could not be used for another purpose.
  4. [39]
    The appellant also submitted that the second direction was inadequate because it did not explain to the jury “how to use the lies”.
  5. [40]
    In support of this submission the appellant cited Edwards v The Queen[6] in which Deane, Dawson and Gaudron JJ said that when 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”.  The appellant submitted that a direction of this kind should have been given but was not given.  That submission cannot be accepted.
  6. [41]
    The dictum in Edwards upon which the appellant relied was part of a longer passage that followed an analysis by Deane, Dawson and Gaudron JJ about the inadequacy of a direction which merely instructed a jury that they had to find “consciousness of guilt” before they could use a lie as incriminating evidence.  Their Honours were concerned to emphasise that an adequate direction had to identify the circumstances which rendered the “explanation for the lie … that the truth would implicate him in the offence”.[7]
  7. [42]
    In this case there was no inadequacy of that kind.  The three lies upon which the prosecution relied had been identified with precision.  Her Honour also directed the jury that, on the Crown case, “not only did Mr Boscaino lie to police, but that he did all of those actions to dispose of Mr Thompson’s body, and to get rid of any possible evidence to cover up the killing because he was guilty of the offence of murder and not the lesser offence of accessory after the fact of murder” (emphasis added).  There was no issue here about proving an intention to kill nor about any subsidiary legal issues.  The jury would have been perverse not to accept that Thompson had been murdered and the only question was whether the appellant had participated in that murder.  Her Honour pointed to the Crown’s contention that “because of the totality of the efforts he went to” they should infer that he was guilty of murder.[8]  This was a reference to Mr Meredith’s argument to the jury that the appellant’s proffered explanation for his conduct should be rejected because the appellant “went to such trouble, to such extreme trouble, because he was fearing that the truth would implicate him in the murder”.  In the context of this case, no more was required than to direct the jury that the conduct, including the lies, might be regarded as incriminating if the jury drew the inference that the appellant did those things “because” he was guilty of murder rather than because of anything else.[9]
  8. [43]
    For these reasons, ground 2 should be rejected.
  9. [44]
    By ground 3 the appellant contends that the jury was inadequately directed on the subject of Earwaker’s evidence.  The appellant cited R v Burns[10] as authority for the proposition that, in cases in which the prosecution relied upon confessional evidence, the jury must be directed that before they can act upon that evidence they must be satisfied of two things: that the confession was made and that it was true.  The appellant submitted that her Honour failed to direct the jury that they had to be satisfied that the statements were true and that this omission occasioned a miscarriage of justice.
  10. [45]
    Burns is not authority for such a proposition.  It was a case which involved an unsigned record of interview which the accused man denied he had made.  The applicant submitted, in relation to the alleged confession, that the judge was obliged to direct the jury that they could not use the admissions against the applicant unless they were satisfied that the admissions had been made and that they were true.  The Court found that such a direction had been given and rejected an argument that the direction had been given in terms that were inadequate.  Barwick CJ and Gibbs and Mason JJ emphasised that the content of a direction about the use of evidence of an alleged confession depended on all the circumstances of the case.  Citing Ross v The King,[11] their Honours said that there was no rule of law or of practice which required a judge to caution the jury against acting on such evidence or which prescribes any measure of comment which it was the judge’s duty to make.[12]  Relevant to the appellant’s argument in the present appeal, their Honours said:

“In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind.  In a case such as the present, where the accused person alleges that a confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true.  In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.”[13]

  1. [46]
    Murphy J said that the real issue in the case was whether the alleged confession was actually made and that, if it was made, it would have been fanciful to suggest that it should not be accepted as truthful and accurate.
  2. [47]
    That was exactly the position in this trial.  No part of the appellant’s case at trial involved the proposition that, if he had made the admissions to Earwaker, they were untrue.  The real issue, upon which a direction was necessary, was whether or not the appellant made the incriminating statements which Earwaker claimed he had made.  The appellant makes no complaint about the directions on that aspect of the case.  The admissions were, in substance, that he and Dyball had a plan to rob Thompson, that he had handed the axe to Dyball and that he had used it himself.
  3. [48]
    Having regard to how the case was conducted by the prosecution and defence, the jury could have been under no misapprehension that the real issue concerning Earwaker’s evidence was whether the appellant had made the incriminating statements and that if the jury was satisfied that the appellant had made those admissions, there was no reason to doubt that the appellant meant what he said.  That would also explain why experienced defence counsel made no application for any particular direction of this kind and sought no redirection.  The directions were fair and were consistent with how the parties chose to litigate the issues.  This ground should be rejected.
  4. [49]
    The appellant also contends that her Honour should have directed the jury that, if they accepted that the statements to Earwaker were made and also that the statements were true, then what the appellant had said to Earwaker “was not sufficient to show the appellant’s guilt of murder (at least as particularised by the Crown in this trial)”.
  5. [50]
    The Crown case, as it was articulated in a document given to the jury as an aid, posited the following alternatives:
    1. (a)
      The jury should be satisfied that the appellant did the act or acts which killed Thompson; alternatively,
    2. (b)
      The jury should be satisfied that the appellant aided Dyball, who did the act or acts which killed Thompson;  alternatively,
    3. (c)
      The jury should be satisfied that that one or other of the appellant or Dyball did the act or acts which killed Thompson and the other of them aided.
  6. [51]
    The Crown case was that, independently of Earwaker’s evidence, the circumstantial evidence raised an inference that Dyball and the appellant had formed a plan that, when Thompson came to the appellant’s home bringing with him $30,000 in cash, they would rob and kill him.  The prosecution’s case was that the evidence of the killing itself, as well as the acts done by both of them in the aftermath of the killing, proved that case.  Even on the appellant’s own evidence, Thompson had been murdered and his money and drugs had been purloined.  However, there was also the evidence of Earwaker that the appellant admitted that there had been a plan to rob Thompson of his money and to keep the money and the drugs.  Earwaker’s evidence did not include a confession about a premeditated killing but the Crown’s case was that the jury should infer that the murder of Thompson was a necessary concomitant of that plan because otherwise Thompson would tell the drug-dealing world that it was unsafe to deal with Dyball and the appellant.  Earwaker’s evidence was supportive of the Crown case but it was not suggested that it proved the whole case on its own.
  7. [52]
    This submission should be rejected.
  8. [53]
    The appellant’s remaining ground is that the jury’s verdict was unreasonable.
  9. [54]
    The prosecution evidence in the case has already been set out.  It raised an inference that the appellant was a party to the murder, either as the actual principal or as an aider.  The contrary case was put forward in the appellant’s evidence and the jury might have thought it lacked plausibility.  According to the appellant, Dyball killed Thompson outside the appellant’s home, left the body lying for a period where anyone might see it while remaining seated, also visibly, in Thompson’s car for a reason that was never explained.  When the appellant asked him why he had killed Thompson, Dyball did not explain and the appellant, who was in company with Dyball for long periods afterwards while going to the trouble and expense to hide Dyball’s guilt, never again raised the question.  Having been put in this awful position by Dyball, the appellant then gave Dyball $20,000 in exchange for the drugs taken from the dead Thompson.  Thereafter, he coolly went out to the Casino for the evening and, on the following morning, arranged for his grass to be mown and was sufficiently lacking in distraction to be able to insist that the job be done properly.  Moreover, on the appellant’s own admission in his evidence, the intending drug buyer, Thompson, had been killed and the appellant and Dyball, between them, kept the money and the drugs.
  10. [55]
    Having regard to the task of an appellate court when this ground is raised,[14] it is enough to point out that the circumstantial evidence set out earlier in these reasons, coupled with Earwaker’s evidence, and taking into account the appellant’s version of Thompson’s killing, which the jury might have thought strained credulity, there was ample evidence to support the jury’s verdict.  The circumstantial case, which proved the lengths to which the appellant had gone to hide the murder, coupled with his evident attitude in the days following, supported by the evidence of admissions, raised a very strong Crown case.
  11. [56]
    The grounds should be rejected.
  12. [57]
    The appeal should be dismissed.
  13. [58]
    MORRISON JA:  I have read the reasons of Sofronoff P and agree with those reasons and the order his Honour proposes.
  14. [59]
    BROWN J:  I agree with the reasons for judgment of Sofronoff P and the order proposed by his Honour.

Footnotes

[1]  Sections 10 and 307 of the Criminal Code (Qld).  The appellant also pleaded guilty to count 2 on the indictment, interfering with a body.

[2]  See eg. The Queen v Hillier (2007) 228 CLR 618 at [48] per Gummow, Hayne and Crennan JJ.

[3] The Trial of Robert Thomas Crossfield, 26 State Trials 1 at 216.

[4] Circumstantial Evidence, A P Will, (1896), at 142, reprinted by Fred B Rothman & Co, Littleton, Colorado, 1982, a text that is, confusingly given the author’s name, modelled upon Circumstantial Evidence, W Wills (1872), which speaks of such evidence as “denoting on his part a consciousness of guilt”, see at 85.

[5] Shepherd v The Queen (1990) 170 CLR 573 at 580 per Dawson J, citing Gibbs CJ and Mason J in Chamberlain v The Queen [No 2] (1985) 153 CLR 521 at 536.

[6]  (1993) 178 CLR 193 at 210.

[7] Ibid.

[8] R v Baden-Clay (2016) 258 CLR 308 at [74]: “cases where the post-offence conduct, such as the accused’s flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence…”.

[9] cf. R v Ciantar (2006) 16 VR 26 at [81] to [87].

[10]  (1975) 132 CLR 258.

[11]  (1922) 30 CLR 246 at 255.

[12] Burns, supra, at 261.

[13] Ibid; Wilson J agreed with the plurality; compare a case like R v Perera [1986] 1 Qd R 211 in which the making of the incriminating statement was contested but so too was the meaning and significance of the alleged statements.  In such a case a jury ought be directed about the need to be satisfied about the making of the statements as well as the “truth”, that is, the incriminating meaning which the Crown attributes to the statements.

[14] M v The Queen (1994) 181 CLR 487 at 494.

Close

Editorial Notes

  • Published Case Name:

    R v Boscaino

  • Shortened Case Name:

    R v Boscaino

  • MNC:

    [2020] QCA 275

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Brown J

  • Date:

    08 Dec 2020

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC493/19 (No citation)20 Dec 2019Date of conviction of murder following trial before Lyons SJA and a jury.
Appeal Determined (QCA)[2020] QCA 27508 Dec 2020Appeal against conviction dismissed; trial judge did not err in directing jury on either post-offence conduct or confessional evidence; jury’s verdict not unreasonable: Sofronoff P, Morrison JA, Brown J.

Appeal Status

Appeal Determined (QCA)

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