Rice v The Queen M17/1996 [1997] HCATrans 190 (6 June 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M17 of 1996

B e t w e e n -

MICHAEL JEFFREY RICE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 6 JUNE 1997, AT 2.41 PM

Copyright in the High Court of Australia

MR P.F. TEHAN: If the Court pleases, I appear with my learned friend, MR C. BOYCE, for the applicant in this matter. (instructed by Victoria Legal Aid)

MR G.R. FLATMAN, QC: May it please the Court, I appear with MR O.P. HOLDENSON, for the respondent. (instructed by P. Wood,

Solicitor to the Director of Public Prosecutions (Victoria))

Might I indicate to the Court that Mr Holdenson will have the conduct of this argument in the special leave application.

BRENNAN CJ: Yes. Mr Tehan.

MR TEHAN: May it please the Court, the Crown case here was one which depended upon circumstantial evidence and evidence of consciousness of guilt. The consciousness of guilt evidence played a most significant part in the factual material relied upon by the Crown. It was therefore important for the trial judge to give proper and appropriate directions upon how the jury could use that evidence.

In this case, the jury were not told whether they could use the consciousness of guilt evidence as direct evidence of guilt; nor were they told whether that evidence amounted to independent evidence of guilt; nor were they told whether the evidence was merely part of the circumstantial case advanced against the applicant. It must be the case, we submit, that the jury would have used the evidence of consciousness of guilt as, to use the words of the majority in Reg v Edwards, an indispensable link in a chain of evidence necessary to prove guilt. This position is fortified by reference to three factors: firstly, the evidence was, indeed, a significant part of the case advanced against the applicant; secondly, the trial judge himself drew a distinction between circumstantial evidence and evidence of consciousness of guilt; and thirdly, in the Court of Appeal his Honour Mr Justice Brooking, in speaking for the court, was prepared to accept this distinction and was also prepared to accept that the evidence was, again to use the words of the majority in Edwards, an indispensable link in a chain of evidence.

Could I take the Court to page 23 of the application book where his Honour the learned trial judge, having dealt in conventional terms with circumstantial evidence, turned to the evidence of consciousness of guilt and commenced his directions by saying:

Now, apart from relying on circumstantial evidence in the way I have described it, you are also entitled to act on what the Crown relies on here, and that is the state of consciousness of guilt.

In the Court of Appeal, Mr Justice Brooking, at page 93 of the application book, said at line 27:

I shall assume that Mr Tehan is correct when he describes the lies as indispensable links in a chain of evidence necessary to prove guilt.

On the next page, at page 94 of the application book at line 17, his Honour said:

It is now said, and with some justification, that the jury were charged in terms which may have suggested to them that this was not so.

That is, that evidence of consciousness of guilt is itself circumstantial evidence. With that as a foundation, the point in this application is simply this, that at no time was the jury told that they had to be satisfied beyond reasonable doubt that the lies told by the applicant, which were not in dispute, true enough, were (a), deliberate, (b), related to a material issue in the sense that they related to the unlawful and dangerous act perpetrated by the applicant against the deceased, and (c), bespoke of a motive for lying, in the sense that they sprang from a realisation of guilt.

At no stage, in our submission, was the criminal standard of proof applied to the consciousness of guilt in this case.

DAWSON J: Why need it be? No doubt the ordinary direction was given as to the standard of proof.

MR TEHAN: It was indeed, your Honour, but that is no answer to the question which arises in this case.

DAWSON J: Why is it not?

MR TEHAN: As his Honour Mr Justice Callaway observed in Reg v Renzella, Court of Appeal, Supreme Court of Victoria; 6 September 1996 - - -

KIRBY J: It is a terribly strong circumstantial case against your client here.

MR TEHAN: Your Honour, the circumstantial evidence essentially came down to two matters: concealment of the body and the fact that the applicant was the last person seen with the deceased. All the other evidence in the case essentially was evidence of consciousness of guilt. The fact that it might have been a strong case is no answer to the proposition which is raised in this application and that is whether or not the criminal standard was to be applied to the evidence of consciousness of guilt.

DAWSON J: What, do you mean to say that each of the lies and the inferences had to be proved beyond reasonable doubt?

MR TEHAN: The jury had to be satisfied beyond reasonable doubt that the body of consciousness of guilt evidence bespoke of guilt. They were never told to apply the criminal standard of proof to the consciousness of guilt evidence.

DAWSON J: They did not need to be. If you take at the bottom of page 24:

So before you use a lie or set of lies upon which the Crown relies here as consciousness of guilt, pointing to his guilt of this charge, you must be satisfied that the lies were due to the consciousness of guilt of his killing of Jill Cave by an unlawful and dangerous act.

Satisfied; it could only mean satisfied beyond reasonable doubt if - - -

MR TEHAN: His Honour never said that to the jury.

DAWSON J: Where is his general - - -

MR TEHAN: His general directions in relation to the standard of proof are at the commencement of his Honour's charge at page 19 and page 20 of the application book. At no time did the trial judge tell the jury, in conventional terms, that when he used the word "satisfied" he was referring to the criminal standard of proof and, indeed, in the Supreme Court of Victoria in the case of Renzella Mr Justice Callaway has made it clear that - - -

KIRBY J: It is a decision of the court, is it not?

MR TEHAN: Speaking for the court, that

The requirement for such a direction is distinct from the standard of proof.

That is at page 7 of the judgment in Renzella. Reading on from that :

The direction is required because the lie is relied on as an implied admission whether or not it is an essential part of the Crown case.

Now, the Court of Appeal rejected the argument that has been advanced and, in doing so, relied upon the fact, as has just been put to me, that the judge had directed the jury in conventional terms upon the onus and standard of proof.

In our submission, the fact that the judge may so direct the jury is no answer to the proposition that the criminal standard of proof does apply to consciousness of guilt evidence where it can truly be said, as it must be the case here, that that evidence is an indispensable link in a chain of evidence towards proof towards guilt.

BRENNAN CJ: What is the fact that the jury must be satisfied of beyond reasonable doubt before they can use this evidence?

MR TEHAN: They have to be satisfied of the three tests as set out by Lord Lane in Lucas, beyond reasonable doubt, in particular - - -

BRENNAN CJ: That it is a lie that is deliberate. What else?

MR TEHAN: That it is material and that it springs from a realisation of the guilt of the crime charged.

BRENNAN CJ: And how are they to be satisfied about that beyond reasonable doubt before they reach the conclusion that there is a crime that he has committed?

MR TEHAN: How are they to be satisfied?

BRENNAN CJ: Yes.

MR TEHAN: They are to be satisfied of it by applying the criminal standard of proof to the body of consciousness of guilt evidence, properly identified by the judge in his charge for their consideration.

BRENNAN CJ: I have heard you say so, but as a matter of logical sequence, if the issue to be determined by the jury is: did he commit this crime, and there is a body of consciousness of guilt evidence tendered in order to prove that fact, are you saying that they have to be satisfied that he committed the crime and is conscious of his having committed it before they even get to the stage of deciding whether he is guilty or innocent?

MR TEHAN: No.

BRENNAN CJ: What have they got to decide?

MR TEHAN: What they have got to decide is that the consciousness of guilt evidence bespeaks of guilt of the crime charged.

DAWSON J: He would only be conscious of the guilt if there is a guilt.

MR TEHAN: That is right. And that is why it is confusing and not at all helpful to adopt the approach adopted by the Court of Appeal and to speak of consciousness of guilt evidence in terms of circumstantial evidence.

DAWSON J: But it is just exactly what it is.

MR TEHAN: The application of the criminal standard of proof to circumstantial evidence is a different process from the application of the criminal standard of proof to consciousness of guilt evidence.

DAWSON J: No, it is not.

MR TEHAN: The application of the criminal standard to consciousness of guilt evidence is in cases where either the consciousness of guilt evidence is an implied admission of guilt or an indispensable link in a chain of evidence towards proof of guilt.

DAWSON J: But it is not an indispensable link; it is circumstantial evidence.

MR TEHAN: In this case, we say that the lies, distractions and misinformation that the Crown relied upon formed a very significant part of the case against the applicant.

DAWSON J: No doubt it did.

MR TEHAN: If the conclusion is right, as indeed the Court of Appeal were prepared to assume as being correct, that it did fall within the second leg of what the majority referred to in Edward's Case, then it must be the case that the criminal standard of proof is to be applied by the jury to a consideration of that evidence. Now, in this case - - -

DAWSON J: Shepherd's Case deals with this and, although people have criticised the distinction, these are not links in a chain; these are strands in a rope.

MR TEHAN: That is just the difficulty which is perhaps created in some senses by what is referred to as an indispensable link in a chain of evidence towards proof of guilt, at page 210 of the report of the majority in Edwards' Case, because in our submission, there is a difference between the application of the criminal standard of proof in consciousness of guilt evidence to its application in cases of circumstantial evidence, and it is this: the application of the criminal standard of proof to consciousness of guilt evidence depends not upon whether the evidence be described as circumstantial or otherwise, rather it depends upon an answer to this inquiry: is acceptance of this evidence a necessary step in a process of reasoning leading to a verdict of guilty? The consciousness of guilt evidence in this case answers that inquiry in an affirmative way.

BRENNAN CJ: I do not think it does at all, from what I understand of the case. The case, as I understand it, against you is that your client was the last to see the deceased alive; he was a man who said that he had taken the deceased to Tullamarine Airport and, in fact, he delivered her body in a barrel filled with lime some months afterwards, having bought the lime.

KIRBY J: The lime having been found in his apartment or consistent with lime in his apartment.

MR TEHAN: That is true.

BRENNAN CJ: I mean, forget anything about consciousness of guilt, that is an open and shut case.

MR TEHAN: But the consciousness of guilt evidence was a very large part of the case and was treated by the trial judge in his charge to the jury, and we can infer by the way in which the judge dealt with the Crown Prosecutor's final address to the jury, as being a most significant element of the Crown case - - -

DAWSON J: Maybe it was, but it is still just circumstantial evidence.

MR TEHAN: But the reality is this, your Honour, that if you take out of the case against the applicant the lies, distractions and misinformation, in our submission then it cannot be the case that the jury inevitably would have been convicted. What could have well, in our submission, have turned the scales towards conviction were the lies, the distractions and the misinformation in respect of which the criminal standard of proof was not applied. Indeed, as I have pointed out at page 23 of the application book, the learned trial judge seems to have made a distinction between circumstantial evidence and the standard to be applied to circumstantial evidence and consciousness of guilt evidence.

KIRBY J: But you have to read his Honour's charge in this respect in the context in which it appears, and in the context of the general direction which gave very clear instructions about the burden and onus of proof. I mean, that is the essential question. Is that enough?

MR TEHAN: With respect, your Honour, I have answered that by reference to what his Honour Mr Justice Callaway says in Renzella and must be the law, and that is that you cannot answer the question as to whether or not consciousness of guilt evidence is looked at by the jury to the appropriate criminal standard by reference to conventional directions concerning the onus and standard of proof. That is not what Edwards' Case said.

DAWSON J: That is the point, of course. You cannot do that with consciousness of guilt evidence - circumstantial evidence, you cannot talk sensibly about hypotheses consistent with innocence, but to talk of hypotheses consistent with innocence is only putting the standard of proof in another way and with consciousness of guilt evidence, the way of doing it is to say that you must be satisfied that these lies arose from a consciousness of guilt and not for some other reason. And his Honour did that.

MR TEHAN: He must be satisfied, we would submit, beyond reasonable doubt that they arose from a realisation of guilt of the crime charged. It is those words which the judge never at any stage put in his charge to the jury. And the approach taken in the Court of Appeal was to simply refer to the conventional directions and to refer to the final addresses of counsel. It is, in our submission, not sufficient to direct the jury's attention to the - - -

DAWSON J: You say the fault in his charge is simply that he failed to say at the beginning, "When I talk of satisfaction, I mean satisfaction beyond reasonable doubt"?

MR TEHAN: We would say specifically the judge should have told the jury that - - -

DAWSON J: If he said that, you would have no complaint?

MR TEHAN: Your Honour, we would go further and say that when his Honour turned to consciousness of guilt evidence, it being such a significant part of the Crown case here, he should have said in clear terms that the jury had to be satisfied beyond reasonable doubt that that evidence bespoke of guilt of the crime charged. And his Honour never did that.

KIRBY J: There is a very clear statement of principle in Renzella. Nothing that we would do would cast any doubt upon that statement of principle and when one looks at this case, you have to judge every case and every charge in its own context, the case is so really unpromising that it is not one that seems to cry out for hypotheses of innocence.

MR TEHAN: It is a suitable vehicle for the grant of special leave because of the fact that the trial judge dealt with consciousness of guilt evidence in a way different from circumstantial evidence and it is also a suitable vehicle for the grant of special leave because the consciousness of guilt evidence was such a significant part of the Crown case against the applicant, we would submit.

KIRBY J: I would have thought that barrel with the body and the;lime was the strongest case, in which was said to be the computer of your client.

MR TEHAN: With respect, your Honour, that is not the point. The point is the jury well might have convicted the applicant in this case because of his lies. If they did so, they were not directed properly upon the high standard to which they had to be satisfied - - -

DAWSON J: In Renzella this passage appears which seems to me to be accurate.

The lie and its character as an admission do not have to be proved beyond reasonable doubt unless the lie is the only evidence against the accused or an indispensable link in a chain of evidence necessary to prove guilt.

There is no link in a chain here. It is simply circumstantial evidence and it is certainly not the only evidence.

MR TEHAN: It is not the only evidence, but the words "an indispensable link in a chain of evidence" towards proof are not - - -

DAWSON J: It may be, but it is not in this case.

MR TEHAN: But the words "an indispensable link in a chain of evidence towards proof of guilt" do not apply to cases where the only evidence is a lie.

DAWSON J: It is only necessary to prove the admission constituted by the consciousness of guilt where that evidence is an indispensable link in a chain of evidence leading to guilt. That is not so in this case.

MR TEHAN: We would submit, your Honour, that the consciousness of guilt evidence formed such a powerful part of the Crown case that they could not - - -

DAWSON J: It may have been powerful, but that does not alter the situation.

MR TEHAN: But the jury, with respect, your Honour, really at the end of the day could not have convicted without the consciousness of guilt evidence. There was other evidence - - -

DAWSON J: The Chief Justice has just put the contrary proposition to you.

MR TEHAN: The fact that there was other evidence does not answer the question, with respect.

DAWSON J: Answer what question?

MR TEHAN: The question is whether or not the jury were properly directed as to the appropriate standard to apply to the consciousness of guilt evidence.

DAWSON J: In this case there was no necessity to direct them that the consciousness of guilt evidence had to be proved beyond reasonable doubt. It was the crime that had to be proved beyond reasonable doubt. That evidence was not evidence which would have constituted links in a chain. It was merely circumstantial evidence of which there was a great deal of other circumstantial evidence.

MR TEHAN: If your Honour pleases. I have put my argument in respect - - -

DAWSON J: I see I have brought the red light upon you, Mr Tehan.

MR TEHAN: I have put my argument in respect of that matter. If the Court pleases.

BRENNAN CJ: Mr Holdenson, we do not need to call upon you.

If special leave were granted in this case the appeal would have no prospects of success. For that reason, special leave will be refused.

AT 3.03 PM THE MATTER WAS CONCLUDED