Lies and videotapes

For several years, consciousness of guilt has posed serious problems for Victorian trial judges. While the theory behind consciousness of guilt is arguably just common sense (a person who lies about important matters or engages in other incriminating conduct, like attempting to flee the State after an alleged offence may be more likely to be guilty of that offence) the reasons for the problems numerous and arguably a predictable result of the current state of the law:

• The directions required are long and complex, requiring precise identification of each separate piece of evidence and requires the judge to suggest other explanations for the lie or other evidence.
• The Court of Appeal has been incredibly vigilant for the slightest slip
• Prosecutors, concerned about the directions leaving the jury confused or considering the issue too hard and just setting the evidence to one side, may eschew reliance on consciousness of guilt reasoning
• Defendants, concerned that extensive directions on the topic would give it unwarranted prominence, encourage prosecutors and judges to eschew reliance on full consciousness of guilt directions

Johnstone v R [2011] VSCA 60 is then merely the latest in the long line of cases where consciousness of guilt evidence has brought a trial undone.


The facts
The facts of Johnstone are reasonably straightforward. D and V lived together as housemates. One night, when both were very drunk, D attacked V and killed him. During the assault, D punched and kicked V, dropped a platypus statue on his head and hit him with an office chair. D then went to bed. In the morning, D discovered that V was dead. He contacted a friend, who contacted police. During the interview by police, D admitted hitting V several times and using the statue once. He denied any other aspects of violence and suggested that the attack occurred because V made a homosexual remark to D which, he says, caused him to lose it. Forensic evidence established that the chair had been used, and that the statute may have been used more than once.

Consciousness of guilt
The prosecution relied on the express denials of using other weapons against D as evidence of consciousness of guilt. The trial judge, Coghlan J, expressly directed on this, and also mentioned a prosecution argument that D generally downplayed the extent of the attack. On appeal, the accused argued that:

77 Counsel for the applicant submitted that, although his Honour had initially referred to the lie about use of the chair, he had then told the jury that ‘the same can be said for generally downplaying his role’ and that ‘if you were satisfied that the accused man had deliberately underrated what had happened of which really the chair and the platypus and the whole of the circumstances are part, then you could use the material in that way’.
78 Counsel submitted that his Honour had not identified the relevant lie precisely, and had failed to direct the jury to apply the Edwards reasoning to each lie separately. Because the jury direction was confusing, the jury might have regarded the interview as a whole as evidence of consciousness of guilt and failed to differentiate between issues of credibility on the one hand and lies which gave rise to an inference of guilt on the other.

The Court of Appeal upheld this argument, distinguishing the earlier case of R v Ellis [2010] VSCA 302, also an appeal from a Coghlan J trial, where the jury was allowed to consider consciousness of guilt evidence collectively.

Neave JA did, however, indicate some degree of reluctance about this conclusion, stating:

85 I reach that conclusion with some reluctance. I am sceptical about whether the complex components of the Edwards requirements are the most effective means of ensuring that juries do not misuse evidence of alleged lies or other post-offence conduct relied upon by the prosecution as evidence of consciousness of guilt. Such complexity causes considerable difficulty for trial judges and often gives rise to appeals. In my view, it would be desirable for the jury directions about consciousness of guilt to be simplified. The Victorian Law Reform Commission has made recommendations as to how this could be done.

To which I can only say that I agree. The law on consciousness of guilt is far too complex and does not appear to be conducive to a fair trial. When both prosecutors and defence want to avoid the need for the judge to direct on a legitimate mode of reasoning, structuring a case to avoid that issue (as has happened in a number of cases), there is something wrong. I also find it hard to accept the logic behind requiring the jury to separately consider whether the accused deliberately lied about using a chair in the assault, compared to deliberately lying about the extent of other injuries he inflicted. The two matters are both aspects of the one issue - Was the accused deliberately playing down the severity of the assault to avoid the police (and later a jury) using the savagery of the assault as a basis for concluding that he was guilty of murder?

It is also very unfortunate that the court did not address the question of whether the proviso applied. In the context of this case, it seems hard to believe that the consciousness of guilt evidence was, or could have been, so important to the jury's reasoning that the error deprived the accused of a trial according to law. Based on what is described on the appeal, it is hard to see how a jury would reach a verdict other than murder. While there was evidence that might have raised the maligned homosexual advance defence (see, e.g., Green v R (1997) 191 CLR 334 and this article), the basis for that defence is the now repealed law of provocation. Given that repeal, the defendant's claim that he 'lost it' after V made a homosexual advance seems to be strong evidence of murder.

Video evidence
The Court of Appeal split on a second ground of appeal regarding the admissibility of some mobile phone videos. The videos themselves seem inconclusive. Neave JA described the evidence as:

92 The relevant video clips were taken using the victim’s mobile phone. The clips, which I have viewed, show Mr Stud, the victim, and the applicant cavorting with each other, while obviously drunk. In one clip, the applicant is dancing with or holding the victim, while a song is being played. In another, one of the participants (not the applicant) exposes his penis. There is another clip of an unidentified man’s penis. At the trial, the Crown sought to rely on the video clip to rebut the assertion made by the applicant in his record of interview that the assault was triggered by the victim’s remark to him and (possibly) to cast doubt on the applicant’s account of the events of the evening when the victim was killed.

The trial judge felt the need to specifically direct the jury that they might not approve of the behaviour, but not to use that as a basis for reasoning to guilt. Neave and Nettle JJA split on this issue, Tate JA seemingly remaining non-committal. Neave JA states:

97 The video clips had little probative value in establishing that the accused had intended to kill the victim or inflict very serious injury on him. They simply showed vulgar and drunken skylarking which could not provide the basis for any inference about what happened on the night when Mr Higgins was killed. On the other hand, I consider that they had little, if any, prejudicial effect. Further, the jury were warned by his Honour of the limited use which could be made of them.

In contrast, Nettle JA would have excluded the videos, saying:

7 With respect, however, the aspect of the applicant’s and the deceased’s relationship depicted in the videos could not have been relevant unless it tended to make more or less likely the offence of homicide with which the applicant was charged. For example, if the videos suggested that the applicant and the deceased had a violent or tumultuous relationship, they would have been relevant in that way. But I do not see why, and the Crown was unable to explain how, the applicant’s propensity when drunk to engage willingly, and apparently amicably, in obscene camp behaviour with the deceased made it more or less likely that the applicant murdered the deceased.
8 It would have been different if the applicant were able to invoke the common law defence of provocation. One of the suggestions floated by the defence in the course of trial was that the applicant’s conduct in striking the deceased was a reaction to an unwanted homosexual advance by the deceased to the applicant. If the defence of provocation were still available, evidence that the applicant previously engaged in camp behaviour with the deceased would be admissible as tending to rebut that defence. But the defence of provocation has been abolished, and so there was no issue of provocation to which the evidence could have been directed.
9 Furthermore, it is really not open to doubt that video clips were prejudicial to the applicant, because they showed him willingly engaging in varieties of misconduct which, to most people, would present as revolting.

This last paragraph seems very troubling in two ways. First, it suggests that a jury might be more likely to convict the accused of murder in the form of a vicious attack on a housemate because the two had engaged in some sexual behaviour together. Alternatively, it suggests that the a Victorian judicial officer thinks that a jury might reason in that way. While the former is clearly worse, the latter possibility (if it is objectively incorrect) is also cause for concern.

As Nettle JA rightly recognises, with the abolition of provocation as a defence, it was not necessary to rebut an argument that the attack was the result of an unwanted sexual. However, to the extent that the accused claimed that this was the reason for the attack, the video might have been relevant for establishing that this was not the real reason for the attack. If so, it could establish another lie which might be used as evidence of consciousness of guilt. That said, with the error that already arose concerning consciousness of guilt evidence, I think it is for the best that no one attempted to use it in that way in the trial.

Conclusion
Johnstone demonstrates the ongoing difficulties that surround consciousness of guilt evidence and how it can bring trials conducted by judges with extensive criminal law experience undone. It also highlights the need for the prosecution to properly identify the permissible uses of the evidence and provide the judge with the assistance necessary to avoid error. But most of all, it shows that the current law on consciousness of guilt is far too demanding and needs to be simplified. One can only hope that Parliament takes note of Neave JA's call for reform in this area.