Mocenigo v The Queen [2013] VSCA 231 (30 August 2013)

ADAM EMILIO MOCENIGO	Appellant
ADAM EMILIO MOCENIGO

v

THE QUEEN	Respondent

JUDGES	BUCHANAN, NEAVE and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 August 2013
DATE OF JUDGMENT	30 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 231
JUDGMENT APPEALED FROM	(Unreported, Lasry J, [Restricted])

CRIMINAL LAW – Conviction – Murder – Appellant convicted of the murder of de-facto – Body dumped in bushland – Cause of death not able to be ascertained – Appeal allowed - Murder conviction quashed – Lies and post offence conduct considered – Manslaughter conviction substituted.

CRIMINAL LAW – Sentence – Manslaughter – Sentenced to 11 years imprisonment with non-parole period of 8 years set.

Appearances:	Counsel	Solicitors

For the Appellant	Mr J P McMahon with Ms K Argiropoulos	Michael Gleeson & Associates

For the Crown	Mr B F Kissane with Ms S A Flynn	Mr C Hyland, Solicitor for Public Prosecutions

1 I agree with Priest JA, for the reasons which his Honour has stated, that the application for leave to appeal against conviction should be granted, the appeal allowed, the conviction sustained by the appellant in the court below set aside and the appellant be re-sentenced as his Honour proposes.

3 Following an eleven day trial in the Supreme Court, on 28 September 2012 the applicant, aged 35 years, was found guilty of the murder of his de facto partner, Kristy-Lee Hall. He was sentenced on 20 November 2012 to be imprisoned for 22 years, upon which a non-parole period of 18 years was fixed.

4 For reasons that I will explain, in my opinion the conviction for murder is unsafe and unsatisfactory.[1] There should be a judgment of acquittal for the offence of murder, but a conviction for manslaughter substituted.[2] For that offence I would impose a sentence of 11 years’ imprisonment, and fix a non-parole period of 8 years.

5 There were two grounds agitated in the application for leave to appeal against conviction. They were:

6 Given that the application for leave to appeal against conviction should be granted and the appeal against conviction allowed, it is unnecessary to consider the application for leave to appeal against sentence.

7 In order to appreciate the conclusions that I have reached, it is necessary to set out the facts in moderate detail.

8 The deceased, Kristy-Lee Hall, and the applicant commenced a de facto relationship in 2007. A daughter, Chloe, was born in June 2008. They moved to a residence at 6 Clauscen Street, Heidelberg Heights, in 2009.

9 Unknown to the applicant, the deceased had been carrying on a relationship with Ross Teazis for a year or so prior to her death. She had expressed to family and friends that she no longer had feelings for the applicant, was only remaining with him for Chloe’s sake and was contemplating moving out.

10 At the time of her death, Ms Hall was using heroin – and sometimes other drugs – daily, usually in Mr Teazis’ company, a fact which was not known to her family and friends. Mr Teazis said that in the months before her death the deceased was using heroin intravenously ‘pretty much every day’. In addition to using heroin in Mr Teazis’ company, most days Ms Hall would also get a quantity of heroin from Mr Teazis to take home with her, which she used at night.

11 Although there was no evidence of any previous physical violence by the applicant toward the deceased, a neighbour, Dorothy Lesser, gave evidence of an argument which occurred just outside the front gate of their house in which the applicant yelled at the deceased. Ms Lesser said the applicant appeared to be very upset, was waving his arms up and down and was yelling at the deceased in a despairing and angry voice. The only words Ms Lesser could understand the applicant say was, ‘You’ve ruined my fucking life’ or ‘You broke my fucking heart’, which he repeated several times before walking down the driveway and into the house. She also heard him say the word ‘fuck’ repeatedly. Ms Lesser gave different estimates of when the argument took place. At trial she estimated it was three to four days before the weekend of 26 and 27 March 2011, although she had told the police it had been about a fortnight before that weekend.

12 On Saturday 26 March 2011, Ms Hall left home at about midday. She and the applicant had earlier made arrangements to attend a barbeque later that day in South Morang at the home of their friends, James Pivato and Kimberley Young. Ms Hall told the applicant that she was going shopping. She gave him and Chloe a goodbye kiss before leaving.

13 Despite telling the applicant that she was going shopping, the true position was that Ms Hall had arranged to meet Mr Teazis. They used heroin together in a car park at the end of Clauscen Street, then waited in the car for about 40 minutes before driving to various locations around Melbourne during which Mr Teazis collected money from a number of individuals who were indebted to him over drug transactions. The two then had a late lunch together at a café in Kew. In the course of the afternoon, the applicant made a number of telephone calls to Ms Hall’s mobile phone. Mr Teazis claimed that he could hear the applicant yelling during these calls. The applicant sounded ‘upset or maybe drunk’, although Mr Teazis could not hear what was being said. According to Mr Teazis the applicant would hang up and then call back. Call charge records showed three calls involving the applicant and the deceased between 2.27pm and 3.30pm, and a further three unanswered calls from the applicant to the deceased between 3.59pm and 6.58pm. The call charge records also showed that the applicant made a number of telephone calls to James Pivato between 2.35pm and 7.35pm. Mr Pivato said that the applicant called him at about 4.30pm and told him that the deceased was still out shopping and that they were not going to make it to the barbeque.

14 Mr Teazis said that he dropped Ms Hall at home at around 6.00pm. From that point nobody other than the applicant either saw or heard from her.

15 On Sunday, 27 March 2011, one TA [3] and his partner Carlie Simons visited the applicant’s house with their son, Hudson. Ms Simons first gave evidence that they arrived at approximately 1.00pm, and later that they arrived at around lunch time, although in her statement to police she said they arrived at 11.30am. Chloe and the applicant were in the front yard when they arrived. The applicant told them that Ms Hall was not at home and that he had tried to call her. Ms Simons gave evidence that the whole time they were at the house, TA remained outside and helped the applicant fix his Nissan Patrol. At one point the applicant and TA drove to a bottle shop. When they returned, the applicant had a four pack of Wild Turkey bourbon cans and TA had a bag of lollies. Ms Simons and TA left the applicant’s residence at about 3.30pm.

16 During the Sunday afternoon, Kimberley Young visited the applicant’s house to obtain marijuana. She smoked it in the applicant’s presence. Ms Young observed the applicant drinking Wild Turkey. She said ‘he seemed very tired and lethargic and he didn’t look right’.

17 On Monday, 28 March 2011, the applicant attended a Corrections appointment, since he was required to perform unpaid community work resulting from a conviction for a drink driving offence. At approximately 5.45pm two police, Constables Christopher Rose and Kyle Strangman, attended the applicant’s residence. The police told the applicant that Ms Hall and Chloe had been reported missing. The applicant, who was there with Chloe and his father, told the police that Ms Hall was not at home and that he had not seen her since she left the house at about 10.00am on Sunday. He said that Chloe was fine. The two police looked around the house and the backyard, including the shed, and saw nothing of significance. According to Constable Rose, the applicant appeared very calm and willing to allow the police to look around.

18 Following the visit by police, the applicant contacted James Pivato and asked whether he and Chloe could stay at his house that night. He also called Carlie Simons and asked her and TA for driving help (his driver’s licence having been suspended). An arrangement was made for them to meet him at McDonalds at 6.30pm. From McDonalds, TA drove the applicant’s Nissan Patrol to James Pivato’s house in South Morang, while Ms Simons followed in another car with Chloe and Hudson. Soon after arriving at the South Morang house, the applicant said that he had to dispose of some cannabis plants at his house in case the police came around. He asked Mr Pivato to watch Chloe for him.

19 The applicant and TA left the house at South Morang at about 9.00pm and returned at approximately 10.30pm. According to the applicant’s covertly recorded conversation, prepared statement and record of interview, it was during this time that the deceased’s body was moved from the shed at 6 Clauscen Street, Heidelberg Heights into the Nissan Patrol and transported to Kinglake. When he returned to South Morang, the applicant said that he had to go home to collect his wallet and some things for Chloe. The applicant, TA and Ms Simons left the South Morang house and went to 6 Clauscen Street, before again returning to South Morang, where the applicant and Chloe stayed overnight.

20 The next morning, Tuesday 29 March 2011, at about 8.45am TA and Ms Simons picked the applicant and Chloe up from Mr Pivato’s home. The applicant asked Mr Pivato if he could borrow a pair of shoes, since his had become wet from being left outside overnight. The applicant said to Mr Pivato, ‘Thanks again for letting us stay and if anyone asks, I only left once last night’. TA and Ms Simons then drove the applicant to a Corrections appointment.

21 That Tuesday afternoon, Jason Ellis and Purdey Hall went swimming at the Stoney Creek picnic campsite in Kinglake. They observed a human body – that of the deceased – in the creek under some branches. They left the campsite and drove to the local police station. They accompanied police to the picnic spot and showed them the body, before moving away to an upper car park where police took statements from them.

22 At about the same time, the applicant and TA, together with Ms Simons and Chloe, had returned to the Kinglake area, parking in the lower car park. Ms Simons gave evidence that the applicant had said something about needing to collect the marijuana plants he had thrown out the night before, thus the need to drive to Kinglake. They arrived at Kinglake at about 4.00pm. Once the car was parked, the applicant got out and, using a different path to that used by the two swimmers and the police, went down into the bush while TA remained at the car with Ms Simons and Chloe. When he returned to the car, the applicant said that he could not find the marijuana plants. He and TA then went off together for a short while down the path, following which they returned to the car and left.

23 Around the time the applicant and TA left Kinglake, the police returned to the picnic area to find that more branches had been placed on the deceased’s body. It is apparent that the police, using a different path, had missed the applicant and TA by a matter of minutes.

24 At about 4.45pm, Sergeant Dimitrios Petsas, still following up on a missing persons report, attended 6 Clauscen Street, Heidelberg Heights. Upon gaining entry he inspected the house and found nothing suspicious.

25 When he returned to 6 Clauscen Street, the applicant thought the house appeared as though it had been broken into or as if someone had been home. He telephoned the Preston Police Station to report the matter. Police asked him to attend the station. During the trip, the applicant asked Ms Simons not to tell the police that they had been to Kinglake, and to say that she had last seen the deceased on Sunday morning at 10.00am. In his statement and interview of 6 April 2011, the applicant claimed that it was while en route to the Preston Police Station that TA told him not to tell the police about his role, TA having become involved to help the applicant.

26 Commencing at 8.00pm or 8.30pm, Senior Constable Lee-Anne Meade conducted an audio recorded conversation with the applicant at the Preston Police Station. The applicant told her that he had not seen the deceased since 10.00am or 10.30am on Sunday when she was on her way out. He said that she had also gone out on the Saturday night. The applicant claimed that TA and Carlie Simons were at his house when the deceased left on Sunday morning. He told Senior Constable Meade of the difficulties he and the deceased had experienced during the previous eight months; and said that at times he felt like a single parent during that time, because the deceased was rarely home and he always had Chloe. The applicant said that the deceased was on drugs and would crash out stoned on the couch and sleep all day. When he tried to talk to the deceased about drugs, it would start an argument or the deceased would just leave. The applicant described the deceased as a good person and would send him texts asking how Chloe was.

27 Detective Senior Constable Jason Williams of the Homicide Squad attended the Preston Police Station and conducted a recorded conversation with the applicant commencing at approximately 12.05am. The applicant repeated that he had last seen the deceased on Sunday morning. He said that she had come home at about 6.00pm on Saturday and was home for an hour before going out again. The deceased had been back on drugs for the past eight months, and she would go out and come back all scrambled and just want to sleep. The applicant told Detective Williams that the deceased was good with Chloe, and the deceased sent him nice messages every day. At the conclusion of this conversation, the applicant was arrested in relation to the murder of the deceased, whose body had been found several hours earlier. He was then taken to Heidelberg Police Station.

28 While in custody at the Heidelberg Police Station, at 4.00pm on Wednesday, 30 March 2011, the applicant was seen by Dr Edward Ogden in the presence of Sergeant Peter Koger. The applicant had, earlier that day, been administered Valium and Thiamine due to concerns that he was showing signs of alcohol withdrawal. He told Dr Ogden that he ‘had been concerned his partner was seeing someone else, although she denied it, and that he was going without to support her, to give her whatever she needed, although he felt she couldn’t be pleased’. As a result, he had started drinking again, up to three quarters of a bottle of spirits a day. In his contemporaneous notes, Dr Ogden recorded that the applicant, ‘Became very upset and tearful, explaining he is not a violent person’. The applicant told Dr Ogden, ‘I didn’t mean to hurt her. I wanted to make sure she would be found. I wanted the kids and her family to have closure. I wanted to hand myself in. I have told the Homicide Squad everything except for an hour’. Throughout this conversation the applicant was tearful and almost uncontrollably emotional. He also had a mild tremor, shivers and sweating although wrapped in a blanket. Dr Ogden formed the view that he was suffering from alcohol withdrawal symptoms. He thus gave the applicant a further dose of Valium, and provided instructions for another dose to be administered later that night.

29 Sergeant Koger, who was present during the conversation between the applicant and Dr Ogden, took notes of the conversation after the interview had been concluded. His notes recorded the applicant telling Dr Ogden that he was not a violent person, never intended to harm his partner and subsequently wanted to make sure she was found. The applicant said, ‘I wanted the kids and her family to have closure, I wanted to hand myself in. I told the homicide everything except for an hour. I know I drink too much and I’ve done a bad thing. I wish I could change the past. I know I am going to gaol for a long time. I don’t care. I just want to make sure my kids know why and want my kids and my parents to forgive me.’ According to Sergeant Koger, the applicant then said, ‘I’m not normally a violent person. I don’t know what I did and why I did it. I am stuffed. What are my kids and my dad going to think about me now. Am I ever going to see them again?’. After Dr Ogden had examined him, the applicant was handed over to members of the Homicide Squad. He was then taken to the St Kilda Road Police Complex.

30 At 1.25am on Wednesday, 30 March 2011, Detective Senior Constable Jason Williams commenced a formal record of interview. The applicant complained that he was freezing and sweating. He told police he had received legal advice and had been told to make no comment, although he provided police with information to assist them to make contact with Jimmy Pivato and Kimberley Young. The applicant said that TA had been telling lies to police.

31 Later, at 4.30am, the applicant was driven from the St Kilda Road Police Complex to the Melbourne Custody Centre. During the drive, police covertly recorded a conversation between the informant, Detective Senior Constable Adam Roche, and the applicant. The recorded conversation lasted for approximately one hour. In the course of the covert conversation the applicant was emotional and upset, and stated the following:

• ‘I didn’t plan for this to happen and I didn’t mean to kill her or anything. It was just an accident as fucked up as that sounds’.

• Ms Hall got home and went to leave again. The applicant wanted to know why she was not staying home with Chloe and him. She pushed him out of the way. He was trying to stop her from leaving.

• ‘I bear hugged her and we fell onto the bed and I was holding her. The struggle sort of stopped and I got up and she wasn’t moving’.

• ‘I had no intention of hurting her. I’ve never laid a hand on her in my life’.

• The applicant said he tried to resuscitate her but nothing was happening. It was too late for the ambulance. He did not know whether or not to ring the police.

• The applicant was in the bedroom crying. He could not believe what had just happened and did not know what to do.

• TA came in. He told the applicant to take the deceased out the back so that Ms Simons and Chloe would not see her.

• The applicant wanted the deceased to be put somewhere where she could be found, so that Chloe and her family could have closure. He just wanted to spend a couple of days with Chloe and have time for all of this to sink in. Kinglake is a camping ground with natural springs and people are there all the time. TA wanted to hide the deceased in the pine forest, but the applicant wanted her to be found.

• He returned to Kinglake the following day. ‘I know it sounds stupid but I just had to apologise or, I just needed a bit of time with her on my own before I left her’. TA came down and said the deceased might float away so they put a big log on her.

32 On Saturday, 2 April 2011, the applicant was being held in an observation cell at the Melbourne Assessment Prison, having been assessed as being at risk of self-harm or suicide. Peter Wallis, Operations Manager at the prison, entered the applicant’s cell for an advisory visit. The applicant became emotional and spoke to Mr Wallis about what had occurred. He told Mr Wallis that the deceased was going out to get more drugs and that he was talking to her and trying to stop her from leaving when he grabbed her in a bear hug type hold and they struggled and fell. He was yelling at her and talking to her, trying to stop her from leaving, and then after some time he got up but she didn’t, she just lay there. He tried to revive her but there was no response, and he fell apart and did not know what to do. Another man told him not to call the police or an ambulance because he would get into trouble, and told him to take the body outside while they thought of what to do. He said that he wanted the deceased to be found so that his daughter and the deceased’s family could grieve. He said he knew what he had done had resulted in her death but he had no intention of hurting her. He said that he wanted to tell the police exactly what happened so that the truth would come out.

33 Several days later, on Wednesday 6 April 2011 the applicant attended the St Kilda Road Police Complex at the request of his lawyers. The applicant provided police with a pre-prepared statement that he read aloud during a recorded interview. His lawyer was present during the interview. In the statement and interview the applicant said:

• Ms Hall came home on Saturday night affected by amphetamines. She did not want to go to Mr Pivato and Ms Young’s place for dinner. About two hours later the deceased went out again. She returned mid-morning Sunday and woke the applicant and Chloe up. The deceased was in the bedroom getting ready to go out again when TA and Ms Simon arrived.

• While TA and Ms Simon were out the front, the deceased called the applicant in to ask whether he knew they were coming over.

• The applicant and the deceased had an argument. Ms Hall tried to leave the room. The applicant grabbed her with both hands on her shoulders to stop her and talk to her. She slapped him on the face. He continued to hold her from behind so that she did not leave and so as to calm her down. The deceased was struggling and the applicant kept restraining her. They tripped over something like cords on the ground and fell onto the bed. The applicant was on top of her on the bed and the deceased had her face down. She was thrashing around and hitting her head on the bed head. After maybe 30 seconds the deceased calmed down and was making strange noises. The applicant rolled her onto her back and realised that she was not breathing. He tried to resuscitate her but she did not start breathing again.

• TA came into the room and asked the applicant what had happened. The applicant cried that he did not know what to do. TA helped the applicant move the deceased from the bedroom to the back shed. The applicant dropped the deceased as they carried her out, as her arms were limp.

• The applicant wanted to go to the police but TA told him they would both be in trouble.

• On Monday night, TA helped the applicant put the deceased’s body in the boot of his Nissan Patrol. TA suggested they hide the body in the pine forest, but the applicant did not want to as he wanted the deceased to be found. He wanted her to be left near the falls where there would be people. The applicant did not want the deceased to be missing for very long, but he wanted to spend a few days with his daughter before handing himself in.

34 Dr David Ranson conducted a post mortem examination of the deceased on 30 March 2011. He was unable to ascertain a cause of death. Dr Ranson could not exclude the possibility that the deceased died of natural causes or as a result of a heroin overdose. He described heroin as having a depressant effect on the respiratory system and said that if there were other factors causing obstruction of breathing the drive to breathe might be reduced in a person affected by heroin. Dr Ranson observed a number of bruises, particularly to the left eye. He was, however, unable to link any of the bruising observed to a mechanism or cause of death as there was no damage to the brain or skull. Further, Dr Ranson conceded that the bruises could have occurred either before death or after death, and could have been caused by the deceased hitting her head on the bed-head during the struggle or by being dropped on her face after death. The Crown alleged that the applicant had inflicted the bruises, including the black eye, during the argument that resulted in the death of the deceased. Dr Ranson agreed that there was no evidence of smothering; no evidence of asphyxiation or neck compression; and no evidence of strangling or choking. The decomposed state of the body to some extent impaired Dr Ranson’s ability to study the body. He conceded, however, that even without any decomposition he may still be in exactly the same position and unable to identify a cause of death.

35 Dimitri Gerostamoulos, toxicologist, gave evidence of finding 6-monacetylmorphone (6-NAM), morphine, codeine, ibruprofen, delta-9-tetrahydrocannabinol and alcohol in the deceased’s blood. He said that the 0.6 milligrams per litre of 6-NAM found in her blood was consistent with recent use of heroin, which could have been within the hour or a few hours. Further, he said it was not possible to estimate the dose from a post-mortem concentration, because the physical quality and purity of the drug is unknown. Dr Gerostamoulos said that heroin can cause death by depressing the central nervous system and stopping the brain from sending messages to the heart and lungs to keep breathing. He agreed that the depressant effect of heroin can be escalated by the present of other drugs in the system, particularly drugs that cause additional respiratory depressant effects such as codeine.

36 The prosecution’s case was that, some time after 6.00pm on Saturday 26 March 2011, the applicant killed Ms Hall at the home they shared in Heidelberg Heights. When he did so, he intended to kill or seriously injure her. The applicant, with the assistance of TA, moved Ms Hall’s body from his shed and took it to Kinglake on Monday 28 March 2011. The next day, the applicant and TA returned to Kinglake to better conceal the body.

37 No evidence was called in the defence case. In essence, the defence case was that the applicant admitted he was there when Ms Hall died and they struggled, but he was not responsible for Ms Hall’s death which was an accident. TA, who was at the house at the time Ms Hall died, suggested they move the deceased’s body into the shed. TA also suggested they dispose of the body. The applicant had tried to resuscitate Ms Hall and did everything he could. His lying to the police and disposing of her body were as the result of panic. Medical evidence could assign no cause of death.

38 Thus the principal issues for the jury were whether the applicant killed the deceased; and, if he did so, did he intend to kill her or cause her really serious injury.

39 It is convenient to deal first with the second ground, by which the applicant contended that the trial judge erred in ruling that ‘the applicant’s post offence conduct and lies could support a consciousness of guilt of murder’.

40 As will become clear, in my opinion it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder rather than manslaughter. It does not follow, however, that the lies and post offence conduct in this case were wrongly admitted.

41 The lies relied upon by the prosecution, and which were left to the jury as supporting an inference that the applicant caused the death of the deceased by an unlawful act accompanied by an intention to kill or cause really serious injury, were:

• the lie told to Constable Strangman shortly after 6.07pm on Monday 28 March 2011 that Ms Hall had left the house at around 10.00am on the Sunday morning and got into a silver car that was parked down the street;

• the lie told to James Pivato and others at the South Morang property after 8.30pm on Monday 28 March 2011 that he had not seen the deceased since the Saturday night;

• the lie told to Senior Constable Lee-Anne Meade after 8.30pm on Tuesday 29 March 2011 that he had last seen the deceased when she had left their house shortly after 10.30 am on Sunday 26 March 2011;

• the lie told to Detective Senior Constable Jason Williams that he had last seen the deceased at about 10.00am on Sunday 27 March 2011;

• the supposed lie told in each account the applicant gave to police that Ms Hall died on the morning of Sunday 27 March, rather than on the Saturday night.

42 Post-offence conduct that was left as supporting an inference that the applicant had acted with murderous intent included:

• the failure by the applicant to seek medical assistance for the deceased when she suffered the injury or condition that caused her death;

• his failure to notify the police of the death of the deceased immediately or at any time after it occurred;

• the applicant’s disposal and hiding of the deceased’s body at Stony Creek, Kinglake; and

• his return the next day to the location where the body had been disposed of to better hide the body.

43 As I understand the position, counsel for the applicant did in the end concede that each of the statements relied upon as being lies were properly capable of that characterisation; that is, as deliberate untruths. And as I further understand it, it was accepted by counsel that the jury were capable of finding that the lies were told to obscure the fact that the applicant had been with the deceased when she died. Moreover, although counsel advanced alternative and innocent hypotheses with respect to the post-offence conduct to those relied upon by the prosecution, I do not take it to have been vigorously contended that the conduct was not capable of being used to found an inference that the applicant believed that he had been involved in some wrongful conduct.

44 It was submitted, however, that the lies and post-offence conduct were capable neither of establishing the actus reus nor the mens rea of murder. On a superficial level – without necessary qualification – that submission might be accepted. But in my opinion, the lies and conduct were capable of founding an inference that the accused believed himself to have been guilty of an unlawful killing, whether that be murder or manslaughter.

45 In recent years a certain mystique seems to have grown up around evidence of lies and post-offence conduct. Consciousness of guilt reasoning [4] from lies and post-offence conduct is in reality, however, the application of a process of logical thought. Consciousness of guilt reasoning has a venerable pedigree in the history of humankind. Thus, for example, there is Biblical endorsement of flight as going to consciousness of guilt: ‘The wicked flee even when no man pursueth; but the righteous are bold as a lion.’[5] Although lawyers may have made it such, it should not be regarded as an abstruse or technical concept.[6] And although the concept has in recent times presented difficulty in its practical application, in essence it involves some fairly simple notions. First, it is accepted that a person may sometimes be seen to have impliedly accepted responsibility for a crime, through his or her statements or conduct after its commission. Before that conclusion can be reached, however, the statements or conduct have to be isolated, and how it is that they could be viewed as implied admissions must be identified. Obviously, all other reasonable possibilities consistent with innocence must be excluded beyond reasonable doubt.[7]

46 Before they may be left as going to consciousness of guilt, the words or conduct of a person must be such that an inference might properly be drawn that they are borne of a realisation of guilt and fear of the truth.[8] Lies and other conduct going to consciousness of guilt amount to implied admissions of guilt.[9] Because a person might betray guilt in an infinite variety of ways, the categories of conduct which might go to prove consciousness of guilt are not closed. Concealment of a body is, however, a recognised category. The authorities on the subject were gathered together and discussed by Brooking JA in Rice.[10] Of concealing a body, and risking a charge of murder if the body be discovered, Brooking JA asked pithily and rhetorically: ‘Why would a man take such a risk if the explanation of the death was an innocent one?’.[11]

47 As I have said, the applicant submitted that the lies and post-offence conduct were equivocal, in that they might have gone to manslaughter rather than murder. Putting unusual circumstances aside, however, there is no reason why evidence of consciousness of guilt may not be relied upon where more than one offence is open. Indeed, as was observed in Woolley, it would be ‘fanciful to require as a precondition to possible use of the conduct that the accused had turned his mind to particular alternatives such as murder or various categories of manslaughter’.[12]

48 The applicant placed considerable reliance on certain observations of this Court in Ciantar.[13] In that case the applicant had been convicted of culpable driving. He had fled the scene of his motor car’s collision with a pedestrian. It was argued on appeal that that error had infected the conviction since, in directing the jury concerning the applicant’s flight from the accident scene, the trial judge did not state that evidence of flight could only be used as evidence of consciousness of guilt if the jury was satisfied that it sprang from a realisation of guilt of the crime charged – causing death by culpable driving – as opposed to a realisation of having engaged in some lesser form of unlawful activity. A full bench of this Court (Warren CJ, Chernov, Nettle, Neave and Redlich JJA) held, however, that the trial judge had not erred in his directions concerning the applicant’s flight from the accident scene. Even allowing that a possible explanation of his post-offence conduct was that he was conscious that he had committed one or more of the identified lesser offences, as opposed to the offence charged, it did not follow that the post-offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he had committed the offence charged.

49 A deal of the analysis in Ciantar concerned whether an earlier decision of the Court, Heyes,[14] was correctly decided. Heyes stood as authority for the propositions that where the issue at trial is whether the accused performed acts leading to the death of another on the one hand with an intent to kill or inflict really serious injury (evidencing murder), or on the other hand merely performed an unlawful and dangerous act (evidencing manslaughter), evidence of lies will usually be of no help in resolving the issue. The Court said in Ciantar:[15]

51 Rather than support the second ground of appeal, Ciantar makes plain that the lies and post-offence conduct were properly admitted, and were – subject to proper directions by the trial judge – capable of use by the jury in determining whether the applicant implicitly admitted involvement in the unlawful killing of the deceased, whether that be murder or manslaughter.

52 I note that it was not suggested that the trial judge failed to give adequate directions on the use of lies and post-offence conduct.

54 The fact that the lies and post-offence conduct in this case were properly admitted, however, does not resolve the question whether the verdict of murder is unsafe and unsatisfactory.

55 It is submitted on the applicant’s behalf that it was not open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that, first, any act committed by the applicant caused the death of the deceased; and, secondly, the applicant possessed the requisite intent for murder.

56 I take the principles governing the resolution of a complaint that a verdict is unsafe and unsatisfactory to be unattended by doubt. Recently, in SKA [17] the High Court considered the task of an appellate court when faced with a ground that a verdict is unsafe and unsatisfactory, and held that it was wrong for the appellate court to concern itself with ‘whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence’.[18] It was said:[19]

57 In Libke,[21] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the ‘unsafe and unsatisfactory’ ground:

58 In my opinion, it was not open – in the sense dictated by authority – to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder rather than manslaughter by unlawful and dangerous act. More particularly, although it was open to the jury to find that the applicant caused the death of Ms Hill, in my opinion it was not open to them be satisfied beyond reasonable doubt that he had the intention to kill or cause really serious injury.

59 On the hearing of the appeal, counsel for the respondent emphasised that the prosecution case against the applicant was a circumstantial case which was comprised of an accumulation of the following main strands:

• the fact that, by the applicant’s own admission, the deceased died in his presence;

• the supposed ‘deteriorating and unhappy relationship’ between the applicant and the deceased;

• statements made by the applicant to Dr Ogden and Sergeant Koger, which were relied upon as admissions; and

60 It will be remembered that the applicant did not give evidence. The common thread of his accounts in the covert recording conducted by police on 31 March 2011, his conversation with Mr Wallis on 2 April 2011 and in his statement and record interview conducted on 6 April 2011, is that he and the deceased argued; they struggled; he fell on top of her; he held her face down on the bed and she died. He repeatedly asserted that he did not intend to hurt or kill her, and that he does not know how she died.

61 I am mindful of the need in a circumstantial case not to consider the evidence in a circumstantial case ‘piecemeal’;[23] and that all the circumstances of the case must be weighed in judging whether there is evidence upon which it was open to the jury to convict of murder.[24] Reminding myself that this is so, I turn to consider the several strands of the prosecution’s case.

62 First, there is no doubt that the deceased died in the applicant’s presence. The manner and cause of her death is, however, indeterminate. There was, so it seems to me, nothing to contradict the essential version given by the applicant to police (both overtly and covertly) and Mr Wallis.

63 Secondly, however, as a makeweight for the its contention that the applicant must have intended to kill or really seriously injure the deceased, the prosecution sought to rely on aspects of Dr Ranson’s evidence. In particular, in this Court counsel for the respondent, Mr Kissane, put very great reliance on the bruise observed by Dr Ranson above the deceased’s left eye. As I have already observed, Dr Ranson was unable to ascertain a cause of death. He could not exclude the possibility that the deceased died of natural causes or as a result of a heroin overdose. There were a number of bruises that he observed on the deceased’s body, particularly to the left eye. He was, however, unable to link any of the bruising observed to a mechanism or cause of death. The Crown alleged that the applicant had inflicted the bruises, including the black eye, during the argument that resulted in the death of the deceased. Significantly, however, Dr Ranson was moved to concede that the bruises – including the one surrounding the left eye upon which the prosecution placed much reliance – could have occurred either before death or after death; and could have been caused by the deceased hitting her head on the bed-head during the struggle or by being dropped on her face after death.

64 In my view, whether taken in isolation or in combination with other evidence, the fact that the applicant was in the deceased’s presence when she died, and that she had bruises – which may well have occurred after death – went no way to supporting an inference that the applicant relevantly possessed murderous intent.

65 The third strand to the prosecution’s case – that there was a deteriorating and unhappy relationship between the applicant and the deceased – was wafer thin. True it is that the deceased had been carrying on a relationship behind the applicant’s back, and that she had told people close to her that she was contemplating leaving the applicant; but there was no evidence that the applicant had for any length of time known of the deceased’s clandestine relationship or of her thoughts of leaving him, let alone that he had brooded on those matters or had been angered by them. The only evidence of displayed disharmony in the relationship between the applicant and the deceased was that of their neighbour, Dorothy Lesser.

66 Dorothy Lesser, it will be remembered, gave evidence of an argument which occurred just outside the front gate of their house in which the applicant appeared to be very upset, was waving his arms up and down and was yelling at the deceased in a despairing and angry voice saying, ‘You’ve ruined my fucking life’ or ‘You broke my fucking heart’, which he repeated several times. This argument was anywhere between a fortnight before, or three to four days before, the weekend of 26 and 27 March 2011.

67 The argument Ms Lesser observed was on any view somewhat remote temporally from the death, and was not attended by physical violence directed toward the deceased by the applicant. Indeed, there was no evidence of either recent or protracted quarrelling involving the applicant and the deceased. Less still was there any evidence of any recent or protracted violence directed by the applicant toward Ms Hill.

68 I do not ignore the evidence of Dr Ogden and Sgt Koger that the applicant told Dr Ogden that he ‘had been concerned his partner was seeing someone else, although she denied it, and that he was going without to support her, to give her whatever she needed, although he felt she couldn’t be pleased’. But to my way of thinking, that takes evidence takes the prosecution case only a very little way forward.

69 In my opinion, it was something of an overstatement by the prosecution to suggest that the evidence was capable of demonstrating a deteriorating and unhappy relationship between the applicant and the deceased. As Aristotle is credited as saying, ‘one swallow does not make a summer’. The inherent vice of such evidence is, however, that it is a natural human tendency to reason back. Properly understood, there was scant evidence of a poor relationship between the protagonists – at least in the sense of any animus held by the applicant – yet there existed the ever present temptation for the jury to afford the evidence a status it did not deserve. The evidence should be seen as adding very little to the prosecution case.

70 Fourth in the prosecution’s circumstantial strands was the evidence of Dr Ogden and Sgt Koger. The evidence that the applicant said, ‘I know a drink too much and I’ve done a bad thing’; and ‘I wish I could change the past’; ‘I know I am going to gaol for a long time’; and ‘I don’t know what I did and why I did it’, do little to advance the prosecution’s case. All that the evidence is capable of establishing is that the applicant was conscious of wrongdoing with respect to the death of the deceased. Neither alone nor in combination with the other evidence in the case was it capable of establishing that the applicant intended to kill or to really seriously injure the deceased.

71 The fifth strand – lies and post-offence conduct – was the centrepiece of the prosecution’s case. It would be unnecessarily tedious to repeat the various items in detail, but in summary the lies were directed to either obscuring the time when the deceased was last seen alive, or the time when she died; and the post-offence conduct relied upon included the applicant’s failure to seek medical assistance, his failure to notify the police in a timely fashion of the death, his disposal and hiding of the deceased’s body at Kinglake and his return the next day to better hide the body.

72 As I have said, counsel for the respondent placed very substantial reliance on the lies and other conduct. As a matter of simple logic, however, in my opinion the lies and other conduct were capable of doing no more than showing that the applicant was conscious of the fact that he was involved in the unlawful killing of Ms Hill. They were incapable of showing that he indeed to kill her or do her really serious injury.

73 It must be acknowledged that lies and post-offence conduct may be seductive to a jury. There is an obvious danger that lies or conduct may be accorded an unjustified sinister significance by the jury [25] and be misused.[26] It is an easy thing for a jury to jump from the finding that a lie was told, or incriminating post-offence conduct was indulged in, to a conclusion of guilt. That is likely what occurred here, despite the trial judge’s correct directions.

74 The circumstantial evidence was capable of establishing that the accused killed the deceased. Moreover, when taken together the various strands were capable of proving that the applicant believed that he had unlawfully killed the deceased. (Indeed, I took the applicant’s counsel as conceding that this is so.) But looking at the circumstantial evidence globally, in my view it was incapable of establishing to the criminal standard that the applicant enjoyed murderous intent when he caused Ms Hill’s death. Put another way, it was not open to the jury to be satisfied that the applicant was guilty of murder as opposed to manslaughter. The alternative hypothesis to murder – that the killing was manslaughter – was so patently reasonable that that no jury properly instructed could rationally exclude it.[27]

75 I should add this. The applicant did not give evidence at trial, but that fact could not advance the prosecution’s circumstantial case directed to the applicant’s intent. That is so even if the jury rejected the applicant’s out of court statements as to what had occurred shortly before and at the time the deceased met her death. The applicant had given an exculpatory version, in the sense that he had made it clear that he neither intended to kill nor cause really serious injury. It is obvious that his version must have been rejected by the jury. But rejection of his version – and in particular, that he did not have murderous intent – was not capable of establishing the contrary. His failure to provide evidence at trial could not support the Crown’s circumstantial case on intent. It would be wrong, in my opinion, to approach the resolution of the matter from the position that an inference of murderous intent could more safely be drawn because the applicant had not given evidence at in his trial.[28]

76 For these reasons, the conviction for murder cannot be permitted to stand, and a verdict of manslaughter must be substituted.

77 It is necessary for this Court to impose sentence upon the applicant for manslaughter.

78 I note the following. In imposing a sentence on the applicant for murder, the sentencing judge took account of victim impact statements from Adele Hall, the sister of the deceased woman; Jenny Vea, the mother of the deceased woman; Dean Hall, the father of the deceased woman; and Kimberley Young, Marian Douglas, Belinda Fitzpatrick, and Toby Evoli, all friends of the deceased woman and all of which highlighted ‘the tremendous loss that goes with the pointless death of someone so young’.

79 Importantly, his Honour found that none of the applicant’s conduct demonstrated true remorse. He thought that the consideration of general deterrence was ‘significant’, and that ‘the concealment of Ms Hall's body, and particularly its placement facedown in a creek in a relatively remote area is a significant aggravating circumstance’. The judge accepted that the killing was not planned and was done spontaneously in the face of his relationship with the deceased and her apparent relationship with another man. He noted that the applicant’s relationship with Ms Hall had not previously been characterised by violence. His Honour regarded the applicant’s prospects for rehabilitation as ‘moderately good’.

80 The applicant is an only child, having been born on the 3 December 1977. He is thus now 36 years old. At a young age his parents separated, resulting in him being brought up largely by his mother. His education was difficult, such that by the end of Year 6 he remained unable to read or write (although he developed those skill in adulthood). As a teenager the applicant started using drugs and alcohol. Although there were periods when his life was affected by alcohol or drugs, he did a horticulture course and a business course. He has, despite setbacks, almost always worked notwithstanding his background. Depression which he suffered as a young person followed him into adulthood. A report from forensic psychologist, Tim Watson-Munro, dated the 19 November 2012, confirmed that the applicant was depressed and that he was being medicated for that condition in custody. Mr Watson-Munro concluded that the applicant is not psychotic, and that drugs and alcohol do not seem to be relevant to his mental state.

81 Since 1996 the applicant has acquired 25 convictions from court appearances. Those prior convictions reflect difficulties with alcohol and driving. He has several prior convictions for assault, damaging property and assault in company. They were, however, committed some 15 or 16 years ago and do not portray the applicant as a violent person. Moreover, the evidence at trial did not suggest that the applicant’s relationship with Ms Hall was physically violent until the events of 26 March 2011.

82 We were informed by counsel that since his conviction, the applicant’s mother has suffered a stroke. As a result of his inability to converse with her custody has become more difficult for him. We were also informed that the applicant is serving his sentence in protection, which makes his incarceration more burdensome.

83 Of some significance, an offer made by the applicant to plead guilty to manslaughter was rejected by the prosecution. He has also signalled a willingness to give evidence against TA at his upcoming trial.

84 Since the crime of manslaughter may be committed in an almost infinite variety of ways, sentences imposed for manslaughter fall into a very broad spectrum. Recourse to statistics and comparative sentences is not particularly helpful, merely emphasising that the sentences for manslaughter widely vary. Axiomatically, however, the sentence in any given case of manslaughter must depend on the facts peculiar to it.

85 In my view, the applicant’s offer to plead to manslaughter ought be taken into account as demonstrating some remorse and also as having some utilitarian value (albeit not taken up by the prosecution), leading to significant mitigation of the sentence to be imposed.[29] Similarly, I would regard his willingness to give evidence against TA as mitigating. Moreover, I do not regard the applicant’s prior convictions as being particularly important; would rate his prospects of rehabilitation as good; and assess the need for specific deterrence and community protection as of minimal significance.

86 On the other hand, I regard the applicant’s attempts at concealment of the body as an aggravating feature of the offence. Nor do I lose sight of the need for general deterrence, denunciation and just punishment.

87 Balancing the various factors bearing on sentence, I would impose a sentence for manslaughter of 11 years’ imprisonment. In my view, the minimum period that justice requires that the applicant be required to serve before conditional release on parole is eight (8) years. I would thus fix a non-parole period of eight (8) years’ imprisonment.

^[3] I have identified this individual by initials because he has been charged, but is yet to be tried, with respect to related offences.

^[4] In R v Zheng (1995) 83 A Crim R 572, 574 (fn 7), Hunt CJ at CL suggested that, ‘Awareness of guilt is probably a more “user friendly” expression’. The recently introduced Jury Directions Act 2013 speaks of post-offence ’incriminating conduct’.

Supreme Court of Victoria - Court of Appeal

Mocenigo v The Queen [2013] VSCA 231 (30 August 2013)