R v Smart[2023] QCA 222

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the orders proposed by Boddice JA and with his reasons.
2. [2]
   FLANAGAN JA:  I agree with Boddice JA.
3. [3]
   BODDICE JA:  On 26 May 2022, a jury found the appellant guilty of one count of murder.
4. [4]
   The appellant appeals that conviction on two grounds.  First, the trial judge erred in instructing the jury they could conclude that any of four purported lies revealed a consciousness of guilt.  Second, the trial judge’s directions were insufficient to correctly direct the jury about how they might use the lies to infer the appellant had a consciousness of guilt of murder, rather than manslaughter, or of manslaughter, rather than some other offence.

Background

5. [5]
   The appellant was aged 29 at trial and 26 at the time of the commission of the offence.
6. [6]
   The victim was Tylor John Bell (“the deceased”).  He died on 8 September 2019, following the infliction of a stab wound in an altercation with the appellant on 1 September 2019.
7. [7]
   At trial, there was no controversy the appellant had stabbed the deceased.  The issue was whether the appellant had the requisite intention to kill or cause grievous bodily harm and whether the killing was unlawful.  The appellant contended the stabbing occurred out of self-defence, as a consequence of provocation, or, on the alternative count of manslaughter, due to compulsion.
8. [8]
   A central issue at trial was whether four assertions, made by the appellant in the watchhouse, days after the deceased’s death, were lies which evidenced a consciousness of guilt.

Trial

9. [9]
   In order to understand the relevance of the purported lies, it is necessary to detail the relevant evidence at trial.
10. [10]
    On the afternoon of 1 September 2019, the appellant attended a shopping complex in Gympie.  He was to be picked up by his then partner, Taneeka Stewart.  The deceased and his father were also at the shopping complex.  They travelled there in a utility.
11. [11]
    As the deceased and his father went to leave the shopping centre, there was an exchange of words between the deceased and the appellant, who was standing near the main entrance to the shopping centre.  The deceased’s father described it as a “Couple of words said by both of them.  That was it”.  Others described it as yelling.
12. [12]
    The ensuing physical altercation was captured on CCTV footage.  It was played to the jury when various witnesses gave their evidence.
13. [13]
    The deceased and his father then walked back to their utility and drove out of the shopping centre.  At the time they left the shopping centre, the appellant was standing in the same place, near the front entrance.
14. [14]
    After they had travelled about one kilometre, they stopped at a set of lights.  A car came up from behind.  The appellant was seated in the back passenger side of that vehicle.  The appellant had his door open, with his foot sticking out and his hand on top of the door.
15. [15]
    The appellant left his vehicle and ran towards them.  The deceased’s father said the appellant pinned the deceased in the door as the deceased tried to get out of the vehicle, and that the deceased had nothing in his hands at that time.
16. [16]
    The deceased’s father jumped out of the passenger side and went around the utility.  By that time, the appellant had returned to his vehicle.  There were two females in that vehicle.  The female in the front passenger seat grabbed the appellant and dragged him into the vehicle and they drove off.
17. [17]
    The deceased’s father said he told the deceased to follow the vehicle so he could obtain the number plate.  The deceased said, “I think I’ve been stabbed.”  The deceased lifted his shirt up and he had a big cut on the side of his chest.  There was no blood coming out of it.  They then drove to hospital, about three and a half blocks away.  It took a couple of minutes.
18. [18]
    At the hospital, as the deceased’s father told a nurse his son had been stabbed, he saw the appellant standing there.  The deceased’s father said, “You stabbed my son”.  The appellant replied, “Only because you were going to bash me.”  The deceased’s father had a further scuffle with the appellant before security grabbed the appellant.
19. [19]
    About five or six minutes later, police arrived at the hospital.  The deceased’s father gave the keys to the utility to police.  When it was returned to him, he found the top half of the driver’s side door bent inwards, around the top of the window frame.  He had not previously noticed that damage.
20. [20]
    The deceased’s father said he kept a torch in the driver’s door compartment of the utility.  He also kept a wheel spanner, jack and tools to change a tyre behind the seat.  He did not use any of those items on the day in question.
21. [21]
    In cross-examination, the deceased’s father accepted he told police, on 4 September 2019, he yelled at the appellant, “You stabbed my son” and the appellant yelled back, “You were going to bash me.”  He was pretty sure the applicant said, “Only because you were going to bash me.”
22. [22]
    The deceased’s father denied he knew the appellant was at the shopping centre; that the deceased told him he had seen the appellant outside; and that he intended to assault the appellant.  He could not remember threats being made to assault the appellant.  The deceased’s father did not ever see the deceased holding anything in his hand.  He denied there was a knife in the utility.  He denied the deceased approached the appellant’s car.
23. [23]
    James Logan was present at the shopping centre on the afternoon of 1 September 2019.  He was parked beside the deceased’s utility.  As he was putting his groceries into his boot, two men hopped into the utility and headed towards the exit.  About halfway out, he heard yelling coming from the utility.  Logan said there was a male standing to the right-hand side of the automatic doors.
24. [24]
    There was yelling from both sides, arguing backwards and forwards.  A physical altercation then commenced.  Logan moved in between.  It then fizzled out.
25. [25]
    Logan said when the two men went back to the utility, they yelled a few things about drugs and a junkie.  The younger man from the utility said, “We will catch up with you later with no witnesses.”  He saw the utility leave.  When Logan left the car park, the male was still in front of the shopping centre.
26. [26]
    In cross-examination, Logan agreed that when he saw the two men first enter the utility, he heard the male on the passenger side say, “If you want to stop, I will get out and flog him”.  He did not hear any response.  He agreed the driver was yelling after hopping out of the vehicle.  He also accepted the utility left in a hurry.
27. [27]
    Elise Fowler was also at the shopping centre with her partner Lee Swan.  She saw a young man standing near the entrance.  She heard a male yell something and a utility stopped in front of her vehicle, on the roadway.  Two men left the utility.  The driver was yelling at the young man.  At one point, the driver walked to the back of the utility and put something in the vehicle, kind of down under the driver’s seat.  It was silver.  The driver did not get back into the utility at that time.
28. [28]
    Fowler said the passenger from the utility and the young man started tussling and arguing.  There was a push or a hit and the passenger went flying backwards.  Fowler pushed them apart.  The two men walked back towards the utility.  They burned their wheels as they left the shopping centre.  Fowler then noticed the young man leave in a car in the same direction as the utility, travelling quite fast.
29. [29]
    Swan also observed a utility stop and the driver yell something like, “You junkie.”  The driver grabbed a piece of steel pipe from the tray and headed towards the entrance to the shopping centre.  It was one inch in diameter, about 300 millimetres long.  A second older man also left the utility and walked towards the entrance to the shopping centre.  The driver of the utility then walked back and put the pipe in the back of his tray.  The older man was exchanging words with a male at the front of the shopping centre.  Swan saw the older man back off and then throw a punch in the eye of the other man.  The other man then kicked and the older man went back.
30. [30]
    Swan said Fowler jumped out of the car and went towards them.  The older man from the utility and the male in front of the shopping centre were split up by Fowler.  The utility then left, doing a burnout.
31. [31]
    Renee Cartwright was also at the shopping centre on 1 September 2019.  As she left the shopping centre, she noticed a young man out the front, pacing.  Just before she arrived at her vehicle, she heard yelling.  A man left a utility and walked towards the young man calling him a “fucking junkie cunt”.  There was a lot of yelling between the two men.  It lasted for a couple of minutes.  The man from the utility was pacing back and forward between the young man and the utility.  At that point, another man came from the utility and punched the young man in the face.  There was an exchange of punches.  It only lasted for a short time.  A young woman stepped in and the men returned to the utility.
32. [32]
    Cartwright said after the utility left the shopping centre, another car picked up the young man and left in the same direction, pretty quickly out of the car park.  The young man was seated in the back.  Cartwright also left, travelling in the same direction.  The vehicle containing the young man went pretty quickly around the corner.  Cartwright lost sight of it.  She saw it again at another set of lights.  She also saw the utility.  The two vehicles were side-by-side.  There was an exchange of words between the people in the vehicles.
33. [33]
    Cartwright said within seconds, the young man hopped out and approached the utility.  The young man went to the window of the utility, quite quickly.  He was punching his arm through the driver’s window for a couple of seconds.  There were maybe three or four punches.  She did not see the driver of the utility get out at that stage.  The young man then ran straight back to his vehicle.  As he swung around to hop into the vehicle, Cartwright saw a knife.  It fitted in his hand and had a “short, fat blade”.  The passenger of the utility approached and was hitting the back door, trying to get into the vehicle.  The driver of the utility also approached and reached through the front passenger window trying to get to the young man.  The vehicle then took off through the red light.
34. [34]
    In cross-examination, Cartwright agreed the driver of the utility had something silver in his hand, about 30 centimetres long, at the time he got out of the utility at the shopping centre.  She accepted that when she saw the young man exit his vehicle, she did not notice any knife.  It was only when she saw him go back to the vehicle, after the altercation, that she saw the knife.  He was holding the knife up high.  The young man looked panicked and scared.  As the young man was trying to get back into his vehicle, both men from the utility were trying to get at him.  She could not recall at what point the driver’s door to the utility was opened.
35. [35]
    Francesco Nastasi was stopped at the set of traffic lights.  He noticed the utility in front of his vehicle.  Another car pulled up beside the utility, from behind, quite quickly.  As it stopped, a young male got out of the back passenger side.  The young male rushed towards the driver’s side of the utility.  He was using his right hand to punch the driver’s side window, in a downward motion towards the person in the utility.
36. [36]
    Nastasi said at one point, the driver of the utility tried to open the door, but he never got out.  The male passenger in the utility left the vehicle.  The young man raced back to his vehicle and jumped into the back seat.  The male passenger from the utility ran around trying to catch that person, but the vehicle sped through the red light.  The young man appeared to be quite frightened of the passenger in the utility.  The passenger of the utility appeared to walk back calmly to the utility.
37. [37]
    Nastasi said he noticed a knife in the right hand of the young man.  He could not recall when he actually saw it, whether it was as he got out of the vehicle, or when he returned back to the vehicle.  It was a dagger-type knife with a blade five or six inches long.  The punching he had seen was also with the right hand.  When the lights changed, the utility took off in front of him.
38. [38]
    In cross-examination, Nastasi accepted that when the two men were arguing, he saw the arm of the utility driver out the window.  He also accepted he may not have actually seen the knife until the young man was returning to his vehicle.  The punching through the driver’s window and the opening of the driver’s door all happened very quickly.  He could not be sure of the exact order.  There may have been only one or two punches through the window.
39. [39]
    Nastasi’s wife also recalled stopping immediately behind a utility.  Shortly after, a car stopped beside the utility.  A young man hopped out of the back passenger door and rushed towards the driver’s door of the utility.  She saw the shoulder and body of the young man moving in a downward-type punch.  It lasted only seconds.  She never saw the driver of the utility get out.  A front passenger of the utility did get out and came running around.  At that point, the young man rushed back to his car.  He had a dagger-type knife in his right hand.  He was trying to conceal it.  The passenger from the utility grabbed the door, but the vehicle sped off through the red light.  The passenger returned to the utility.
40. [40]
    Loretta Smith was also stopped at the traffic lights.  She heard a really loud commotion.  There were two cars lined up, a utility and a silver car.  She saw a man, in his 50s with grey hair, in between the two cars.  The man was really angry.  She thought it was a severe case of road rage.  The silver car drove off, quite fast.
41. [41]
    Janine Heyer was at the same set of traffic lights.  By the time of the trial, she had passed away.  A statement provided to police was read to the jury.  In that statement, she said she saw people involved in a scuffle between two cars.  She was in the same lane as the silver car, which was the first car at the lights.  Beside it was a utility.  A person with dark clothing was next to the open driver’s door of the utility, punching at the driver inside the utility.  An older man with grey hair came around the front of the utility and was pulling at the person as if to stop the fight.  The person then got back into the passenger side of the silver car, which sped away through the red light.  The older man hopped back into the passenger side of the utility.
42. [42]
    Taneeka Stewart had known the appellant for about five years.  They were in a relationship for two years.  That relationship ended about a year before the trial.  On the afternoon of 1 September 2019, she went with her friend, Tamsyn Lindsay, to pick up the appellant.  Lindsay drove to the shopping centre.  Stewart saw the appellant at the entrance.  He had been in some sort of altercation.  He appeared a little agitated as he hopped into the back seat behind her.  They then drove out, towards the highway.
43. [43]
    Stewart said they stopped at a set of traffic lights.  Stewart observed a utility in front.  The appellant said the occupants had tried to attack him.  They then proceeded along the highway to another set of traffic lights.  They pulled up beside the utility.  There were two men in the utility.  She could hear one voice yelling.  She told the appellant not to respond.  She could not recall the appellant saying anything in response.
44. [44]
    Stewart said the front driver’s door of the utility opened and a person started to get out of it.  At that point, the appellant exited their vehicle.  There was an altercation between the appellant and the utility driver; a lot of pushing and shoving and yelling.  When the appellant turned around, he had a cut on his hand.  He was trying to get back into their vehicle and close his door, but the other man was trying to force it back open.  Their vehicle then took off to the hospital.
45. [45]
    In cross-examination, Stewart agreed the appellant called, asking them to pick him up.  At that time he sounded fine.  When they picked him up he was flustered and a bit scared.  Stewart said before arriving at the shopping centre, she had discussed with Lindsay about going to Lindsay’s house.  They left the shopping centre travelling towards Lindsay’s residence.  Stewart was trying to calm the appellant down.
46. [46]
    Stewart agreed that when they pulled up near the utility, the driver was calling out words such as “junkie”.  He was very angry.  The appellant called something back.  It happened very quickly.  When the appellant was trying to get back into their vehicle, the driver of the utility was physically trying to get at him.  The appellant was saying words like “drive” or “go”.  At no stage did she see the appellant with a knife that day.  At one point, the passenger from the utility started to get out of the vehicle and make his way around to their vehicle.  She could not recall him being at her vehicle.  She did not ever have a chance to see the hands of the utility driver.
47. [47]
    Lindsay said she was asked to drive to the shopping centre.  The deceased had “had a go” at the appellant.  It was two against one.  The appellant called for them to pick him up so he was safe.  It was around lunch time.  The appellant sat in the back seat.  The original plan was to go back to her house.  The appellant had not previously been to her house.
48. [48]
    Lindsay said they stopped at a set of traffic lights before proceeding and stopping at a second set of lights.  The occupants of a utility beside them started screaming in their direction.  The deceased jumped out with weapons.  He was driving the utility.  She could not say what weapon, but remembered a metal bar was smashed onto the back of her car.  At some point, the other occupant of the utility also got out.
49. [49]
    Lindsay said as soon as the driver jumped out of the utility, the appellant got out of their car.  He was protecting them and himself.  There was a bit of scuffle and the appellant’s hand ended up being cut open.  They drove him to the hospital.  At no stage did she see the appellant with a knife.
50. [50]
    After the incident, police took her car and found knives in the vehicle.  One was in Lindsay’s handbag.  That was her knife.  There was a different knife also located in the vehicle, hidden in the seat cover.  That was a knife she had in her car.  She always had a knife on her.
51. [51]
    In cross-examination, Lindsay accepted the appellant may only have told the two of them about an altercation when he opened the door to her car at the shopping centre.  The appellant appeared shaken and flustered and looked like he had an injury to his eye.  He said something about “Two of them like they had a go at him, they tried to, like, bash him … Over no reason, just randomly.”
52. [52]
    Lindsay said they were not following the utility on purpose.  However, when they pulled up beside the utility, there was some mouthing off from the driver and the other occupant.  The driver was very angry.  When the driver flung the door open, the driver had something in his hand, like a silver bar.  He hit the back of her car with it.  The appellant then jumped into their vehicle and said, “You need to take me to the hospital”.  She ran the red light.   The two men were still trying to get at the appellant as he was jumping into her vehicle.  They travelled straight to the hospital.  Lindsay was not sure the knife depicted in photographs shown to her was her knife.
53. [53]
    Senior Constable Darrell Bennie was one of the police officers who attended the Gympie Hospital on 1 September 2019, at around 2.30 pm.  He and his fellow officer, Constable Mark Bandiera, were the first police officers at the location.  Bennie spoke to the deceased’s father and took possession of the utility’s keys.
54. [54]
    Bennie spoke to the appellant in the emergency waiting room.  The appellant had an injury to his hand.  A pat down search of the appellant revealed no weapons.  Bennie was present when a Detective Senior Constable, Warwick Wilson, spoke to the appellant.  That conversation was audio recorded and played to the jury.
55. [55]
    During that conversation, the appellant said he could not remember what had happened, “Like I got a little bit like blank”.  The appellant said:

“[T]hey pulled up and got out and started yellin’ at me … I said somethin’ back … and then like he jumped in his car, and his dad got out and fuckin’ like ran at me, and um like hit me in the face and we had a little bit of an altercation … and then that was all like sorted out, and then I jumped in the car, I jumped in the car, and they were sorta like, like behind us or whatever, and then we pulled up at the lights, and then he started yelling and yelling again, and he pulled a pole out, so friggin’, like started threatening me with like a pole at the start, like [INDISTINCT] do it.  And then he was sorta like jumpin’ out to get out the car, that’s when I pretty much just jumped out the car, like freakin’, like stop him from gettin’ out the car, like hold him in.  By that time … The door was already open and I ended up fallin’ on him, and then the dad ran around the um, my side, like run around the um car tryin’ to get me, that’s when I just turned around and jumped in the car, jumped back in the car … and that’s when I looked down and I noticed my hand was bleeding …”.

56. [56]
    The appellant told police he did not have anything in his hand when he hopped out of the car.  He jumped out to stop the deceased from getting out because he was “just scared for my life really”.  The appellant told police he did not know what the altercation at the shopping centre was about.  He said, “apparently I was starin’ at them or somethin’ like that, but I didn’t even know that they were there”.   They just started swinging.  People came to break it up.  By that time, his girlfriend pulled up and he jumped into her car and they took off.  He said they were heading home.  When asked how he came to be heading in the wrong direction, he said the driver was going the wrong way; “she didn’t know where I lived”.
57. [57]
    In cross-examination, Bennie accepted that the deceased’s father also had an injury to his index finger when he saw him at the hospital.  Bennie did not recall whether there was blood visible on the index finger.  Bennie asked him if he had any injuries and he said, “No, nothing”.
58. [58]
    Bandiera had responsibility for guarding the utility until it was examined forensically.  The deceased’s father was allowed to remove groceries from the back tray.  Bandiera checked the bags to look for any foreign items.  No items were located in that search.
59. [59]
    Senior Constable Wyatt Telford attended the Gympie Hospital on the afternoon of 1 September 2019.  Telford spoke to the deceased’s father at the hospital, next to the utility.  Telford observed blood on the door, on the inside of the driver’s door and in the centre console area.  Later that same day, Telford intercepted Lindsay’s vehicle.  Telford took possession of the keys.  He did not move anything inside the vehicle at that time.
60. [60]
    In cross-examination, Telford agreed the deceased’s father had a cut on one of his fingers.  It was actively bleeding and he could see blood.  Telford agreed the deceased’s father touched the inside sill of the driver’s door of the utility.
61. [61]
    Police attended the location of the altercation at the traffic lights on the afternoon of 1 September 2019.  An examination of the roadway did not reveal any blood.  A search also did not locate any knife.  Photographs taken of the area were shown to the jury.  There was no CCTV footage available from surrounding businesses capturing the roadway.  Police took possession of CCTV footage from various cameras inside and outside the shopping centre.  That footage was played to the jury.
62. [62]
    Lindsay’s vehicle was examined on 1 September 2019.  The examination revealed what looked like blood predominantly in the rear passenger side of the vehicle, rear door, and the panel behind.  The blood pattern around the passenger side door was consistent with a contact smear.  A presumptive testing also returned a positive result for blood on the rear bumper bar.  A fingerprint analysis revealed a fingerprint on the rear passenger door.
63. [63]
    When the front passenger seat cover was removed, a knife dropped out from inside the seat cover.  A closed flick blade knife with a black handle was also clearly visible on the rear floor area, behind the driver’s seat.  Pressure had to be applied to get the blade to come out.  It was not spring loaded.  Presumptive testing returned positive results for blood on that knife.  A fingerprint examination of that knife produced a negative result.  The knife that fell from out of the front passenger seat cover revealed no visible red coloured staining, although the knife was soiled with some rusting.
64. [64]
    The examination of Lindsay’s vehicle also revealed a dent on the top part of the rear door, “like a crease”, located either where the door handle was or a little bit lower.  It was perhaps two to five centimetres long in a straight line.  Its depth was insignificant.
65. [65]
    An examination of the utility on 3 September 2019 revealed the driver’s door appeared damaged; when the driver’s door was closed, the top of the door sat ajar.  It appeared to be bent outward slightly at the top.  A search of the vehicle revealed a number of tools, including a wheel brace located on the front passenger side floor and a wheel brace located behind the passenger seat.  A torch was also located in the pocket inside the driver’s door.
66. [66]
    The examination of the utility also revealed red staining consistent with blood on the inside of the driver’s door, on the door skin and on the rubber seals at the bottom.  Similar staining was located on the window frame and seal at the top of the driver’s window.  There were also areas of staining inside the vehicle on the centre console lid, the cowling around the gear stick, on the passenger side of the handbrake, the steering wheel and the indicator arm.  Tests returned positive results for blood in about 14 areas.
67. [67]
    An examination of the appellant’s clothing identified five blood stained areas on the front of his shirt.  Blood was also detected on the front of Nike pants, underwear, a pair of Nike shoes and a pair of socks.  Three blood stains were also found on the sleeves of a jumper worn by Taneeka Stewart, as well as on her thongs and on the fabric of her strapless top.
68. [68]
    DNA analysis of various items seized by police revealed the appellant had contributed to DNA found around the back door and quarter panel of the motor vehicle in which he was travelling on 1 September 2019.  There were also two strong contributions from the deceased’s father and the deceased to DNA found on the shirt worn by the appellant.
69. [69]
    Two undercover police officers were placed in the cell of the watchhouse with the appellant on 18 September 2019.  Their role was to pretend they were in custody, arrested on criminal offences.  At one point, the first officer was removed from the cell.  The second officer remained in the cell with the appellant.  Their conversations with the appellant were recorded and played to the jury.
70. [70]
    During the initial conversation, the appellant said he had been attacked and sliced open and he did what he had to do.  It happened about three weeks ago.  He was “literally standing there, gettin’ cigarettes and ice coffee.  Went to go home, and fuckin’ watch movies with my girlfriend and like, fuckin’ [INDISTINCT] and shit.  And, yeah.  Got fuckin’ chased up the highway, and like, fuckin’ yeah”.  The appellant said he did not know how big the knife was because he had gotten if off the deceased.  The deceased had tried to stab him and the appellant had received 12 stitches.
71. [71]
    The appellant said “apparently I was fuckin’ staring at him.  But I fucking wasn’t, man”.  The appellant said he was waiting for his girlfriend to pick him up when the deceased stopped in the middle of the road, pulled out a big pole and said, “I’m gonna fuckin’ kill you, you fuckin’ junkie”.  The deceased’s father then came and punched the appellant.  They left and when the appellant’s girlfriend arrived, he jumped in the car, but the others “fuckin’ chased us up the fuckin’ highway, and then fuckin’, yeah.  Jumped out again, and just kept goin’”.  The appellant said it was self-defence.  He described the deceased and his father as solid and said he ended up with two black eyes.  The appellant said the deceased pulled a knife out and that he “popped [the deceased] in his belly with it”.
72. [72]
    When the conversation was with the second officer alone, the appellant said the deceased pulled up in the driveway of the shopping centre, pulled out a big pole and said he was going to crash his head in.  He described it as a tyre iron sort of thing.  The deceased’s father came over and punched him in the nose.  About two minutes later, his girlfriend arrived at the shopping centre.  When they stopped at the lights, the deceased and his father pulled up right next door and started again.  That was when “I did what I did”.  The appellant said the deceased pulled out the knife.  He described it as a flick thing, although he said he was not too sure.  He did not know where the knife was.  He had managed to get it off the deceased.  The knife might still be in their car.  The appellant also said it was all on CCTV “Of him attacking me … Them chasing me up a highway, it’s all on film.”  The appellant said he was doing what he had to do to keep himself safe.  He said he had to learn from this one; “You get in a fight, just gonna run next time.”
73. [73]
    At the Gympie Hospital, the deceased was found to have a stab wound to the left side of his chest, adjacent to the nipple.  There was visible blood on the skin surface.  When first seen, the deceased was in the waiting room, slumped against the floor.  He looked quite pale but was conscious and able to speak at that point.  However, the deceased had a cardiac arrest quite quickly afterwards.  It lasted four to five minutes.
74. [74]
    An ultrasound revealed excessive blood visible around the heart, causing pressure on the heart.  A surgical procedure identified a laceration across the front part of the heart, a couple of centimetres across.  There were also several small lacerations to the lung tissue.  The defect to the heart appeared to penetrate the pericardial sac and enter the ventricle behind the opening, perhaps a couple of centimetres at that stage.
75. [75]
    The deceased was transported to the Prince Charles Hospital by air.  When first seen, the deceased was in profound mixed shock.  There was a penetrating injury about three centimetres in length on the surface of the left ventricle.  The heart was sutured and the deceased was stabilised from a cardiovascular point of view.  The deceased destabilised a number of days later due to a brain injury.  It was likely the profound impairment of blood flow to his brain during the cardiac arrest in Gympie was the cause of eventual brain death.
76. [76]
    In addition to the injury to the heart, the deceased had a small penetrating injury on the left thigh.  It went through the skin and superficial fat but did not involve any deeper structures.  It would cause, potentially, a small degree of bleeding.
77. [77]
    An autopsy of the deceased on 11 September 2019 revealed sharp force injuries and blunt force injuries.  The sharp force injuries were two stab wounds caused by a sharp implement.  The knife examined could have been a potential weapon.  Moderate to severe force would have been required to inflict the injury to the heart.
78. [78]
    The blunt force injuries were bruising, abrasions and lacerations.  Apart from the stab wounds, the observed injuries were not significant in terms of causation of death.  The deceased did not really have a typical defence injury.
79. [79]
    The ultimate cause of death was hypoxic encephalopathy which was a result of the cardiac arrest caused by the stab wound to the chest.
80. [80]
    At the conclusion of the Crown case, admissions were made that the deceased died on 8 September 2019 as a result of a stab wound inflicted through the chest on 1 September 2019; and that the deceased’s palm print was located on the passenger side rear door window of the motor vehicle in which the appellant was travelling on 1 September 2019.
81. [81]
    The appellant elected not to give or call evidence.

Purported lies

82. [82]
    The Crown contended that four assertions made by the appellant to undercover police officers were deliberate lies, evidencing a consciousness of guilt, namely:

    1. That the deceased and his father chased him up the highway;
    2. That he was heading home;
    3. That the deceased attacked him with the knife; and
    4. That he disarmed the deceased.

Summing up

83. [83]
    The trial judge directed the jury as follows in respect of the purported lies:

“In relation to each of those four alleged lies you have to consider each statement that is said to be a lie.  Before you can use each alleged lie against the defendant you have to be satisfied of a number of matters.  Now, unless you are satisfied of all of those matters you cannot use it as evidence of guilt against the defendant.  First, you have to be satisfied that he told a deliberate untruth.  There is a difference between a mere rejection of someone’s account of events as being unreliable or just untrue and a finding that a person has lied.  There may be reasons why someone does not tell the truth.  It might be possible to say it was a deliberate lie.  Someone can be confused.  There may be other reasons why someone does not tell the truth without engaging in deliberate lying.

Second, you can only use a lie against the defendant if you are satisfied, having regard to all of the circumstances of the case, that it will reveal some knowledge about the events or some aspect of it, just not covering up things that could not be recalled.  Third, you have to be satisfied that the lie was told because the defendant knew that the truth of the matter would implicate him in the commission of the offence that he faces and not some lesser offence as to be told out of a consciousness of guilt of murder or manslaughter.  He has to be lying because he is conscious that the truth could convict him of that particular offence.

You have to consider that sometimes people lie apart from a realisation or consciousness of guilt.  Sometimes they have some explanation for lying.  If the defendant lied about these matters to individuals who he believed were in the watch-house under arrest, then you can think of reasons why he might have been inclined to big note himself and put himself in a fable, lie about having disarmed someone and the like.  Consider the dynamics of someone being in the watch-house with someone else who presented in the way that those two undercover police officers did.

Perhaps he has no recollection or reliable recollection of events and is giving an account that he thinks would put him in a good light with them or anyone else to whom he spoke rather than deliberately trying to conceal the truth.  He may have been induced by the atmosphere in the watch-house and how those undercover operatives spoke to him and engaged in conversation to try and encourage their sympathy or respect or something of that kind.  [Defence counsel] suggested similar kinds of possibilities.  And, as I have said, there is a possibility that a person tell a lie in an attempt to bolster up a true defence out of shame and embarrassment, wanting to conceal something that is disgraceful.

Now, you have to consider all of these matters.  If you accept that a reason for a lie was one of these matters, you cannot use it against the defendant.  You can only use a lie against the defendant in the way I have explained if you are satisfied that the lie was told out of a realisation that the truth would implicate him in the offence with which he is charged.  In the case of murder, that it would implicate him in an intentional unlawful killing.  In the case of manslaughter, that he is conscious that he unlawfully killed someone.  It has to necessarily prove a knowledge of unlawfulness, both murder and manslaughter.  To be proof of consciousness of guilt of murder, it has to show a consciousness of an unlawful killing with an intent to kill or cause grievous bodily harm.

If you are satisfied that the defendant lied as alleged, then the lie cannot be used as consciousness of guilt for the offence of murder if the lie was told to conceal his involvement in a lesser offence, even unlawful killing, manslaughter, since it would not show a consciousness of the intent required to be guilty of murder.  If you are satisfied he lied about the specific matter the prosecution points to or any one of the matters that they point to, then the lie cannot be used as consciousness of guilty of the offence of manslaughter if the lie was told to conceal involvement in a lesser offence, such as assault, wounding or doing grievous bodily harm.

So, if you are satisfied that there was a lie in one or more of the four respects that the prosecution alleges, that he lied about how he came to have the knife, for example, then apart from being satisfied that it was a lie you have to be satisfied of those additional matters that I have just directed you, before you could use that lie as evidence of a consciousness of guilt of the offences of murder or manslaughter that he faces.

…

Now, the prosecution, as I say, points to lies.  If you are considering other matters which you think are untrue or may have amounted to lies or the four matters that have been nominated, they may have implications as to credit.  Again, you have got to be careful not assume that because something is untrue or inaccurate that it is a deliberate lie.  But if you conclude that the defendant lied, it is for you to decide what effect that has on the credibility of other things that he has said on that occasion or on a different occasion.

Bear in mind this important warning:  you do not follow the process of reasoning to the effect that just because a person is shown to have lied about something, that is evidence of guilt.  As I have said, a lie can be told in an attempt to bolster a just cause, out of shame, out of a wish to conceal embarrassing or disgraceful behaviour.  It may be told out of panic, confusion, to escape what someone believes to be unjust accusation.  By itself a lie does not prove guilt.  It may be relevant to credit.  There may be some explanation that exists as to why you would consider that a particular lie, say, told to an undercover officer did not discredit him in general as to other things that he had said on that occasion or on earlier occasions at the hospital and so on.”

Consideration

84. [84]
    As was observed by the majority in Edwards v The Queen,^[1] the telling of a lie would ordinarily merely affect the credit of a witness who tells it.  However, a lie told by an accused may go further.  In limited circumstances, the telling of a lie by an accused may constitute evidence, as it amounts to conduct which is inconsistent with innocence and an implied admission of guilt.  The majority cautioned:^[2]

“But not every lie told by an accused provides evidence probative of guilt.  It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him.  In other words, in telling the lie the accused must be acting as if he were guilty.  It must be a lie which an innocent person would not tell.  That is why the lie must be deliberate.  Telling an untruth inadvertently cannot be indicative of guilt.  And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged.  It must be for that reason that he tells the lie.”

85. [85]
    The requirement that the lie relates to a material issue necessitates that the lie be precisely identified, as should the circumstances and events relied upon to constitute an admission against interest.  Further, a jury must 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 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 … because of ‘a realization of guilt and a fear of the truth’”.^[3]
86. [86]
    As McMurdo JA explained in R v SCL:^[4]

“It was what (if anything) the lie itself revealed about the appellant’s mind which was critical.  Did the lie reveal a consciousness by the appellant of his guilt?  It could do so only if it revealed a knowledge of the offence or some aspect of it and a fear that the truth of the matter would implicate him.  As Callaway JA (with the agreement of the other members of the Court) said in R v Kondstandopoulos:

‘It is the combination of knowledge and fear that evinces guilt’.”

87. [87]
    Whilst the appellant did not dispute, at trial, that each of the four purported lies could properly be put to the jury as lies evidencing a consciousness of guilt, the circumstances in which the appellant expressed the assertion to the undercover police officers that “he was heading home” arguably related to an explanation as to his future intentions when he was being picked up by his girlfriend at the shopping centre.  That conclusion flows from the fact the prosecution did not seek to rely upon what the appellant had said to a police officer at the Gympie Hospital on this topic as the lie, rather, it was what he said to the undercover police officers in the watchhouse cell.  It may be that what the appellant said on that latter occasion had a different context, if considered in the context of what he had said to police at the Gympie Hospital.
88. [88]
    In those circumstances, that purported lie was incapable of being considered an Edwards lie, or a lie at all.  Given the collective manner in which the trial judge dealt with the lies, the intrusion of that false lie with the collective of other lies infected the entire Edwards direction.
89. [89]
    On one view, the last two purported lies were also not Edwards lies; they merely formed part of the narrative.  However, if the jury accepted the appellant had the knife, not the deceased, it would be open to the jury to conclude it was a deliberate lie to assert the deceased had attacked the appellant with a knife; and that the appellant had disarmed the deceased, made in the knowledge that the true state of affairs would implicate him in the charged offence.
90. [90]
    This is particularly so where eyewitnesses only saw the appellant with a knife and there was evidence the deceased was prevented from leaving the utility by the appellant.
91. [91]
    In the context of the evidence as a whole, it was open for the remaining matter to be found to be a deliberate lie, evidencing a consciousness of guilt.  The evidence of eyewitnesses supported a conclusion that it was the appellant who was following the utility, rather than the deceased and his father chasing the appellant up the highway.
92. [92]
    Ultimately these are matters for the jury, having regard to the evidence accepted at trial.  However, each issue was to be carefully considered, separately, in respect of each purported lie.  Who introduced the knife was particularly contentious.
93. [93]
    The jury’s task in considering the purported lies was further complicated by the imprecision in the prosecutor’s identification of the effect of the purported lies.  In closing address, the prosecutor used the expression “He was simply trying to paint himself in the best light possible” when referring to the purported lies.  That itself is not a basis for an Edwards lie.  Further, such an assertion itself carried a risk of a miscarriage of justice by the prospect of an acquittal being lost by the appellant from impermissible reasoning by the jury about the purported lies.
94. [94]
    Whilst the trial judge correctly directed the jury as to the requirements which must be satisfied before a purported lie could be used as evidence of consciousness of guilt, and correctly directed the jury as to the requirement that the lie be told in a consciousness of guilt for the offence of murder, or if not so satisfied, as a consciousness of guilt of the offence of manslaughter, the summing up did not direct the jury as to the relevance of each purported lie, in the circumstances of the case and as to how each may be material to an intention to kill or do grievous bodily harm, or as to the unlawfulness of any killing.  Consistent with the prosecution’s lack of precision, the lies were dealt with collectively, by way of generalisation.
95. [95]
    In circumstances where there was a live issue at trial as to who had produced the knife, and that issue directly impacted upon any satisfaction beyond reasonable doubt of the requisite intention and as to the lawfulness of the killing, there is a real risk the jury impermissibly used the purported lies in determining that they were satisfied beyond reasonable doubt of the appellant’s guilt of the offence of murder.

Conclusion

96. [96]
    In the circumstances of this case, these matters deprived the appellant of a fair chance of acquittal, occasioning a miscarriage of justice.

Orders

97. [97]
    I would order:

1. The appeal be allowed.
2. The verdict of the jury be set aside.
3. Retrial ordered.