Court of Appeal (WA)|2003-08-29|Before: Murray J, Parker J, McLure J

Banks v The Queen [2003] WASCA 198 (29 August 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BANKS -v- THE QUEEN [2003] WASCA 198

Criminal law and procedure - Wilful murder - Direction as to lies told and other conduct by accused after the event of the death - Direction as to motive - Question of reasonable apprehension that jurors not impartial

Axford v The Queen, unreported; CCA SCt of WA; Library No 980200; 20 April 1998

Conway v The Queen (2002) 209 CLR 203

De Gruchy v The Queen [2002] HCA 33; (2002) 190 ALR 441

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

Fairclough v The Queen (1995) 12 WAR 103

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

R v Chevathen & Dorrick [2001] QCA 337; (2001) 122 A Crim R 441

R v Ritter, unreported; CCA of NSW; Library No 60485 of 1994; 31 August 1995

Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41

Zoneff v The Queen (2000) 200 CLR 234

Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

1 MURRAY J: The appellant was indicted for the wilful murder of one Ronald James Downie at Port Hedland on 16 December 2002. He was tried by a judge and jury in the court at South Hedland and on 21 May 2002 he was convicted of wilful murder.

2 He appeals against his conviction on three grounds:

"1. The learned Judge erred in law in failing to adequately direct the jury in relation to the post offence conduct.

Particulars

(a) Such conduct could only be used a proof of guilt of wilful murder if they were satisfied that the appellant only engaged in the conduct because of a consciousness of guilt of wilful murder.

(b) Such conduct could stem from other reasons, and if they accepted that it stemmed from consciousness of guilt of some other crime, such as murder or manslaughter, or simply from consciousness of having been involved in a killing, they should not use the evidence as probative of guilt of wilful murder.

2. The learned Judge erred in law in failing to adequately direct the jury in relation to motive.

Particulars

(a) Having directed the jury that the Crown didn't have to prove motive, the learned Judge failed to direct the jury that the absence of proved motive was a consideration favouring the appellant.

(b) The learned Judge failed to refer the jury to the evidence from which an inference could be drawn that the appellant had no motive; that is, evidence which tended to prove an absence of motive, rather than merely an absence of evidence as to any motive.

(c) During his closing address, the learned Crown prosecutor raised some possible motives for the killing. That was done in a perfunctory fashion, and the possibilities raised had no evidentiary basis. The learned Judge failed to direct the jury to disregard those remarks.

3. There was a miscarriage of justice as a result of a reasonable apprehension that some jurors were not impartial."

3 It is convenient to deal with the third ground at once. When such a complaint is made the question may be formulated as being whether a fair-minded and informed member of the public might reasonably apprehend that, despite any warning or instruction of the trial Judge, one or more of the jury might be incapable of performing their duty of fact-finding and judgment impartially: Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41; Fairclough v The Queen (1995) 12 WAR 103.

4 The question is to be considered in this case against the background of the fact that no such concern was raised by anyone at the time of the trial and so the trial Judge was never called upon to consider whether the jury ought to be discharged. Further, it is conceded that prior to the jury's empanelment they were informed of the duty of impartiality and invited to disclose for the decision of the Judge any matter concerning the case which they might think would make it difficult for them to perform their duty impartially.

5 The ground was supported by the evidence of two witnesses, both of whom gave evidence at the trial.

6 The first witness was the appellant's stepbrother, with whom the appellant had been living at Port Hedland since August 2000. He said in evidence at the trial that the appellant had problems with drugs. His consumption of prohibited drugs was causing difficulties in his relationship with his girlfriend, a Ms Stockton, with whom he lived in Perth. It appears that the idea was that the appellant would come to Port Hedland, live with and receive the guidance of his half-brother, Mr McKenna, and attempt to deal with his drug abuse problem. Expert help was to be sought, as indeed it was from the deceased, Mr Downie, a psychologist practising with the North-West Mental Health Clinic.

7 At the trial Mr McKenna gave evidence favourable to the appellant, without objection, when he said that the appellant had told him he was happy to have consulted Mr Downie, the counselling was going well, he was starting to sort out his problems and to "think straight" and he felt no animosity towards Mr Downie.

8 Otherwise, McKenna's evidence was of little relevance in relation to the day and night of the killing, 16 December 2000. The appellant had been out of the house during the day. He returned about 4.30 pm with another man. Both had a stubby of beer in their hands. The appellant left the house and did not return until about midnight. He returned alone and apologised for waking McKenna who thought that he was affected by alcohol and/or drugs. On the following morning the appellant was unwell. He said he had lost his watch.

9 The only other point to emerge from McKenna's evidence at trial was that on 18 December he drove the appellant to the clinic for an appointment with Mr Downie, who was, of course, by that time, dead. The appellant moved back to Perth on 3 January 2001.

10 In evidence before us, Mr McKenna said that in December 2000 the appellant had accompanied him to a Christmas function for his shift at work. Those present obviously knew each other well. There were thirty or so people there, all employees and members of their families. It seems they were generally friendly, but Mr McKenna said that because of differences in their terms of employment there was some friction. After the killing, rumours were flying and there were much gossip, of which he was aware, after the police came to see him at his home. After that he noticed some coolness towards him at work and that did not appear to change after the appellant was charged. Because of Mr McKenna's discomfort about the reaction of people in Port Hedland, he moved to Rockingham in July 2001.

11 Of course, he had to return to Port Hedland in May 2002 for the trial. He noticed that on the jury which was empanelled there were people he knew; two men from his shift at work, a woman who was a girlfriend of one of McKenna's friends and a train driver, whose name he did not know, who was the foreman of the jury.

12 The other witness who gave evidence before us was the Ms Stockton who was the appellant's girlfriend. Her father was in fact a train driver for the company which employed Mr McKenna. Both attended at the trial and, as I have said, Ms Stockton gave evidence. In part her evidence mirrored that of Mr McKenna. She spoke of her relationship with the appellant and his move to Port Hedland and the reasons for it. She said that while the appellant was in Port Hedland they had spoken often on the telephone. The appellant had a positive attitude towards the treatment he was receiving from Mr Downie. He seemed a lot happier.

13 Of much greater significance, however, was Ms Stockton's evidence that although initially the appellant denied any involvement in the killing of Downie, on 13 March 2001 he told her that he had killed Downie "because the guy was gay". He said he wanted her to know the truth before he went to the police. Arrangements were made for him to meet with the police. In the presence of members of his family and Ms Stockton the appellant made the confession that he was responsible for the death of Downie. I do not need to mention the terms of Ms Stockton's evidence about this now. It will be necessary to mention it again in due course.

14 To us, Ms Stockton said that after giving her evidence she returned to the courtroom to observe the trial and "recognised a lady that I went to school with, but I can't remember her name." It may be presumed that this person was a member of the jury.

15 To my mind, the evidence of these two witnesses provides no basis for concern that some jurors were not impartial. There is nothing in McKenna's evidence to show that any particular animosity existed between him and any member of the jury and, in any event, his evidence was of peripheral relevance only. Nor is there any material in the evidence of Ms Stockton to reveal any cause for concern about any member of the jury, if indeed the lady she thought she recognised was a member of the jury. The jury panel were properly instructed about their duties before they were called to serve. They knew then that McKenna and Stockton were to be witnesses. There is simply nothing to suggest to any reasonable informed observer that any juror had such a contact with those involved in the case that their impartiality might reasonably be doubted. In my view, ground 3 is not made out.

The Crown case and the case for the defence

16 The Crown's case was that the killing occurred late in the night of 16 December 2000 or in the early hours of the following morning. Evidence was led that during the day on 16 December the appellant had been fishing at the Port Hedland jetty where he had met two men, Messrs Pearson and Morrison. They drank some beer and fished until early in the afternoon. They went to Pearson's house. Pearson and the appellant shared a $50 dose of amphetamine. Later, Pearson took the appellant to McKenna's house. I have mentioned McKenna's evidence. The two men left there, picked up a friend of Pearson's, a man named Matthew Trigg, and went to a party being held at the Point Cooke caravan park in a caravan owned by a Mr Suter. The appellant left there at about midnight. The appellant had had some cannabis and there was evidence that he had consumed a considerable quantity of alcohol. There was evidence from some witnesses that at times the appellant appeared to be in a strange mood, particularly after his consumption of amphetamine and cannabis, and some witnesses thought he was adversely affected by alcohol to a noticeable extent. He was seen to have returned to the area of the caravan park on the following morning, looking for his watch.

17 It appears that the appellant went to Mr Downie's home after leaving the party. He said he went there because he was feeling depressed and that he was admitted by Mr Downie. The Crown's case was that it could not be established how the appellant got into the house. They relied on forensic evidence of the post-mortem examination of the deceased and of the examination of the house to prove that there were bloodstains of the deceased in various areas of the house. He was found in the passageway in the vicinity of the bathroom door. None of the exhibits seized at the house contained any DNA indication of the presence of the appellant.

18 A forensic pathologist, Dr Cadden, gave as his opinion, following his post-mortem examination, that the deceased had died as a result of massive blood loss caused by the severing of his carotid artery and jugular vein in his neck. His neck had in fact been cut at least three or possibly four separate times, using a knife with a moderate degree of force. He had bruising to an eye, his nose and left cheek, caused by moderate to considerably forceful separate blunt impacts, such as by a fist. The upper lip was bruised and damaged inside. There were injuries to the left collarbone and the left forearm, bruising consistent with some sort of blunt impact. There were abrasions to the right knee. Dr Cadden said the deceased exhibited no defence wounds and he thought it unlikely that he had struggled with his assailant while either party held the knife.

19 Dr Cadden analysed blood spattering seen in various places in the house. There were drops of blood in the deceased's bed and spattering on the wall near the bed in the bedroom, suggestive of blows to the head as the deceased lay in bed. There was an indication that the deceased had been struck again in the passageway near a bedroom door and that he had received further blows as he lay on the floor in the passageway near the bathroom door. It was at that spot, where the deceased was found, that the fatal knife wounds appeared to have been received.

20 That sort of evidence was completed by the evidence of Dr Knott, a forensic odontologist. He confirmed the nature of the injuries to the outside and inner surfaces of the top lip, injuries which he thought might have been caused by a blow with an object such as an elbow, a shoulder, a fist, the back of a hand, but not a hard object. There may have been one application of force or more than one such incident. There were also contusions or bruising to the lips which Dr Knott thought were most probably caused by force to the underside of the chin, catching the lips between the teeth.

21 There was evidence that when the appellant left the home of the deceased he took some items to make it look as if there had been a burglary. He drove away in the deceased's white Suzuki four-wheel drive. He drove to a place called Pretty Pool and there was evidence to suggest that he left the vehicle there and returned home on foot. The vehicle was seen in the area. On the following day it appears that he returned to the vehicle and drove it to a different place called Four-Mile Creek where various stolen items were scattered in the mangroves. The appellant, it was said, then drove the deceased's vehicle back to his house, returned the key and walked back to his own place of residence. Incidentally, the appellant's watch was later found near the entrance to the Cooke Point caravan park.

22 The body of the deceased was found on the following day by a community health psychiatric nurse who worked with the deceased. People from the North-West Mental Health Service had gone to the deceased's home after he failed to attend the clinic. The doors were locked, but entrance was gained by using a key obtained from the mental health service. As I have said, examination of the premises revealed no sign of forced entry. Both the front and the back doors had an aluminium security door fitted. They were locked and unlocked from the outside by using a key. From the inside they were secured either by a snib to lock the handle or they could be locked by using a key. There were wooden doors at the front and back of the house. They were locked and unlocked from the outside with a key. From the inside these doors could be secured by using a deadlock and barrel bolts fitted to the top and bottom of the door.

23 The appellant spoke to a number of people after 16 December 2000 about the events of that night. On 24 December 2000 he was interviewed by Det Berry and Det Tobin. He told them that he had nothing to do with the death of the deceased. He spoke of his movements on that day; the fishing expedition, the party at the caravan, and he said that from there he walked home, returning on 17 December to look for his watch. He said he had last been to the home of the deceased to do some gardening and he had there taken delivery of some wine. There was evidence of the presence of a person at the home of the deceased, apparently gardening and when a delivery of wine was made. As a result of what occurred later, the Crown contended that the appellant was a self-confessed liar when he gave this version of his movements on 16 December 2000.

24 The appellant was next interviewed by the police on 3 January 2001 shortly before he left Port Hedland. The interviewing officers were Det Sgt Brown and Det Berry. The interview was recorded on video. The story was the same as that previously told and this indeed was the version given to Ms Stockton at that time.

25 On 13 March however, the appellant told Ms Stockton that he killed the deceased "because the guy was gay". He said that he wanted to tell her before he went to the police and arrangements were then made for the police to interview him. This was done first at her home and then on 14 March Det Nelson and Det Sgt Brown conducted an interview, again recorded on video. The story then told was not significantly different from that given in evidence by the appellant at the trial.

26 The appellant's evidence was that he went on 16 December 2000 to the home of the deceased because he was feeling depressed. Mr Downie was home. They spoke for some time. The appellant fell asleep. Perhaps Mr Downie had spiked his drink, but he woke some time later to find the deceased touching his penis. He was frightened and confused. He struck the deceased in the face, not with the intention of injuring him or causing him any harm, but to get Downie away from him. Downie started to bleed from the nose. The appellant got up and tried to get out of the front door, but he could not open it without keys. He turned around to see the deceased standing in the kitchen with a knife in his hand. He ran past him to the back door. They may have come into contact in some way. Again, he could not get out of the back door without keys.

27 He turned back into the house and came upon Downie in the passageway. Downie was holding a large bread knife. A struggle ensued which brought both men into contact with the walls at some stage. They got into the bedroom and fell onto the floor or bed. Somehow they got back out into the passageway and suddenly, as the struggle continued, the appellant felt blood on his face and arm and the deceased fell to the floor, bleeding heavily. The appellant did not recall taking hold of the knife at any stage of the struggle and, of course, the weapon was never found. Eventually, using keys, the appellant got the door open.

28 Because he thought that he would not be believed if he told the truth about what had happened he decided, in his panicky state, to make it look as if there had been a burglary and the burglar had been surprised by Mr Downie, with a struggle then taking place. He took items from the house and he described how he disposed of them using the deceased's four-wheel drive motor vehicle which he later returned to the house. He said that he got on well with Downie and valued his assistance. He did not intend to kill or harm him in any way.

29 The Crown called Dr Joyce, a clinical pharmacologist and toxicologist. He gave his opinion on the state of intoxication of the appellant on the night in question, based upon the evidence as to the amount of alcohol, amphetamine and cannabis consumed. He said that would produce a complex state of intoxication sufficient to impair a person's ability to think things out and make rational decisions, as well as their ability to speak clearly and their motor skills. However, he suggested there was unlikely to have been any impairment of the appellant's ability to form an intent and he would not have been in a delusional state or state of delirium.

30 The Crown called two psychiatrists, a Dr Patchett and Dr Srna. Dr Patchett had two sessions with the appellant, who told him what had occurred on the night in question in terms which were broadly the same as those ultimately given to the police and stated in evidence at the trial. Neither Dr Patchett nor Dr Srna detected any evidence of mental illness, although there was evidence of a mild depressive illness. The appellant was described as having an antisocial personality disorder which would not have adversely affected his ability to form an intent, but would probably have made him more impulsive and aggressive, effects which would have been exacerbated by the consumption of alcohol and amphetamine.

31 The opinion expressed by those witnesses contradicted that of Dr Kay, the psychiatrist called by the defence. While Dr Kay agreed with the diagnosis of antisocial personality disorder, he expressed the opinion that the combination of this disorder, the substances consumed on 16 December 2000 and the appellant's sexual abuse history as given to the doctor, would have caused him to react strongly and without being consciously aware of what he was doing, to the discovery of the deceased touching his penis. While there was no suggestion of mental illness, Dr Kay's opinion was that the appellant may have been acting as an automaton when he became involved in the struggle with Downie which led to his death.

32 Against the background of that evidence the trial Judge directed the jury that neither in evidence nor by way of formal admissions had the appellant admitted that he killed the deceased. The first question therefore was whether the jury was satisfied beyond reasonable doubt that anything done by the appellant directly or indirectly caused the death. If that was established, the next question was, in terms of s 23 of the Code, whether any act of the appellant which was causally relevant was his willed act. The next question left by the trial Judge was whether the death might have been an event which occurred by accident. The directions given by the trial Judge about the question of criminal negligence and the application of s 266 of the Criminal Code are not the subject of any criticism in this appeal. They were, potentially at least, favourable to the appellant.

33 His Honour directed the jury in appropriate terms about the alternative verdicts open on the indictment. His Honour directed the jury about intention. He left the question of self-defence against the threat of an assault, at least with a large bread knife. Again, there is no complaint about the directions given. Finally, if the jury rejected the idea of self-defence and if they concluded that the intention of the appellant was to kill Downie or cause him grievous bodily harm, the trial Judge directed them to consider the question of provocation arising out of the apparently homosexual advances, on the appellant's story, which were being made by the deceased. Again, there is no criticism of the directions given by the trial Judge in that regard.

34 Ground 2 contends for an error of law on the part of the trial Judge in the direction given to the jury in relation to motive. The particulars reveal that the principal argument in support of the ground relies upon the distinction between the absence of evidence of motive and affirmative evidence of the absence of motive.

35 The Crown did not seek at any time to prove that the appellant had a motive to kill the deceased, although it did advance an explanation for the appellant returning to Downie's house and becoming involved in an attack upon him. In his closing address the Crown prosecutor said that on the day in question the jury might think that the appellant "fell off the wagon and went back to alcohol and drugs". There appears to have been ample evidence to support that observation. The prosecutor suggested that the appellant may have gone to Downie's house after the party in a depressed state and "affected to some extent by alcohol and drugs". Again, there was ample evidence to support the observation about the appellant's condition on the night but, of course, whether that had anything to do with his going to Mr Downie's house was a matter for the jury. It seems to matter little, because on any view of the evidence at trial the appellant did that. The prosecutor continued:

"Maybe he blamed Mr Downie for his failings. Maybe he transferred responsibility for his own actions onto those who were trying to help him. Whatever the reasons, he somehow entered Mr Downie's house uninvited and callously punched Mr Downie with multiple blows to the face as he lay sleeping in his bed."

36 The appellant criticises those observations as being speculative and the submission is made that the trial Judge should have directed the jury to disregard them. It is conceded that defence counsel made no such request of his Honour, but it is argued that the failure to take that course should not be considered fatal to this argument if what occurred may be seen to be productive in some way of a miscarriage of justice.

37 No doubt, if a factual issue is of some importance in a case and the jury is left in the position that they may be misled into relying upon arguments which are speculative and unsupported by evidence in the case, whether put by prosecuting or defence counsel, the trial Judge ought to dispel the speculation and ensure by proper direction that the jury do not place reliance upon submissions by counsel which are unsupported by the evidence: see the dicta of Winneke P in R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479 at 492 [23].

38 However, given the appellant's antisocial personality disorder and his personal circumstances at the time, it was not speculative to suppose that that may have provided an explanation for his actions and there was evidence from which the jury might conclude that the attack on the deceased commenced by blows struck to his face as he was in bed. In my opinion, no direction of the kind sought in ground 2(c) would have been appropriate and I note that even in closing it was not suggested by prosecuting counsel that there was any proven motive for the appellant to kill Mr Downie by cutting his throat some three, or four, or perhaps more times.

39 There was, of course, a body of evidence before the jury from Mr and Mrs McKenna, from Ms Stockton and from the appellant that he was happy with his treatment, regarded Downie highly and put much store by him and the assistance he was providing to the appellant to deal with his personal problems arising from his personality disorder and exacerbated by abuse of alcohol and drugs. To my mind, if that evidence was accepted it may not be categorised as affirmative evidence of the absence of a motive to kill Downie upon the appellant's relapse into overindulgence in alcohol and illicit drugs under the less than benign influence of his newfound friends on the day in question.

40 Of course, having regard to the appellant's evidence, which I have endeavoured to summarise, as to the events which occurred when he entered Downie's house, there was again nothing which could be relied upon as evidence of the absence of a reason to kill Downie. Defence counsel submitted to the jury that there was an acceptable explanation as to how the fracas, of which the appellant spoke, commenced with a blow struck in response to the appellant's discovery that Downie was sexually interfering with him, a fracas which then, on the appellant's evidence, simply got out of hand and led to a struggle in the course of which Downie unfortunately, in some way which was substantially unexplained, was caused to cut his throat repeatedly. In short, it was not the case that the defence was able to rely upon affirmative evidence of an absence of a motive to kill.

41 The trial Judge directed the jury in terms of s 23 of the Criminal Code. His Honour explained that motive, a reason to kill, might be relied upon by the Crown, but need not necessarily be proved by it. His Honour explained that the presence of a motive might provide evidence from which it could be inferred that the accused killed the deceased and, indeed, might provide evidence from which it could be inferred that the killing was accompanied by an intention to kill, but his Honour carefully explained that motive was not the same thing as intention and, in the circumstances of this case, that, in my opinion, was as far as his Honour's directions needed to go.

42 It may be accepted that proven absence of motive is relevant to the question whether the accused committed the homicide: Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 per Menzies J at 250. But there is a clear distinction to be made between absence of proven motive and proven absence of motive, the second situation providing the stronger evidence in favour of an accused person and perhaps leading to a need for a trial judge in directing a jury to specifically identify that point and the evidence available to prove absence of motive. When regard is had to that distinction the force of the observation made by Gaudron, McHugh and Hayne JJ in De Gruchy v The Queen [2002] HCA 33; (2002) 190 ALR 441 at 446-447 [28] - [30] that a case of proven absence of motive "would be a most unusual case", is readily apparent.

43 In the same case at 453 [57] Kirby J set out a number of general propositions which might guide trial judges in respect of the instructions to be given to a jury about motive. The first two propositions are:

"(1) No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessentially a task for the jury, viewing questions about motive in the context of the evidence as a whole.

(2) Where the prosecution has not sought, or has failed, to prove a motive on the part of the accused for the crime, the judge may consider whether it is appropriate to make it clear to the jury that the prosecution has no obligation to show a possible motive, and that the absence of a proved motive cannot, as a matter of law, be fatal to its case. Sometimes the precise motives of individuals (if any) will never be known to anyone other than themselves. In such circumstances, it would be completely unreasonable to require the prosecution to prove a motive and the law does not impose that obligation."

44 In my respectful opinion, it would not have advanced the administration of justice in the context of this case if his Honour the trial Judge had essayed any form of comprehensive comment on the facts of the case in the context of a discussion of motive or absence of it. To take the course his Honour did left the submissions to the jury by counsel for both prosecution and defence available for their consideration without detraction. The direction which was required and was given was that which distinguished motive, or its absence, from intention, or the lack of it. I would not uphold ground 2.

The directions about "post offence conduct"

45 In relation to this matter, which is concerned with the lies which, on any view of the evidence, the appellant initially told about his lack of involvement in the events surrounding the death of Mr Downie and the attempt he made to make it appear that the killer was a burglar who must have been discovered during his commission of that offence, the contention is again that the trial Judge erred in law in failing to adequately direct the jury. Specifically, it is put that the conduct referred to could only be used to prove the appellant's guilt of wilful murder if the jury were satisfied that the appellant only engaged in the conduct in question because of a consciousness of his guilt of that particular crime. The jury should have been told, so it is argued, that if they thought it was open to conclude that the conduct was prompted only by a consciousness of guilt of murder or because of the appellant's involvement in an unlawful homicide (putting to one side the questions of accident and self-defence), or simply because the appellant knew that he was involved in a killing, the evidence could not be used as evidence of his guilt of wilful murder, the offence of which he was convicted. In my opinion, the law does not require a direction in such terms.

46 I commence by reminding myself of the issues of fact which were perceived by the trial Judge to arise and which his Honour left to the jury in charging them in a manner which has attracted no criticism from the appellant. The first was that by some act or acts of the appellant he killed the deceased by directly or indirectly causing his death. The second was that his conduct, which was causally relevant to producing that result, was constituted by acts deliberately or intentionally performed. If so, on the basis that the causal relationship was indirect and some circumstance intervened between those acts as the jury found them to be and the death, the trial Judge left the question whether the death might be regarded as an event which occurred by accident or whether, having regard to the appellant's gross negligence, he remained criminally responsible.

47 Depending on what view the jury took of all that they were required to consider whether the conduct for which the appellant was criminally responsible was performed by way of self-defence against an attack upon him with the knife by the deceased. If they rejected that conclusion beyond reasonable doubt, as they no doubt did, they were required to consider whether, in performing the acts which killed the deceased, the accused intended his death, intended to do him grievous bodily harm, or was not proved beyond reasonable doubt to have had either such intention.

48 If the jury found a relevant intention they were required to consider whether the appellant was caused to act as he did following sexual interference with him by the deceased, because he lost his self-control in circumstances which would attract the operation of the doctrine of provocation or, putting it correctly in terms of the onus and burden of proof, whether the Crown had proved beyond reasonable doubt that the partial defence of provocation did not apply in the circumstances of the case as the jury found them to be.

49 It can be seen that there were a considerable number of very live factual issues to be put before the jury which, putting it broadly, might have produced different conclusions as to whether the appellant caused the death at all, as to whether, if he did so, he was criminally responsible for it or innocent of any crime; and if he was guilty of a crime of homicide it was necessary for the jury to decide of which offence open on the indictment the appellant was guilty. That he lied about his non-involvement in the events leading to the death of Mr Downie and that he attempted to divert the attention of investigators in the direction of a fictitious burglary was, in my view, relevant in this case to the question of the appellant's guilt or innocence generally of a form of homicide, a killing for which he was criminally responsible, whether accompanied by a specific intention to kill or do grievous bodily harm or not.

50 It is to be noted that the ground of appeal raises no criticism of what the trial Judge said to the jury about lies or the appellant's conduct in endeavouring to make it appear that the killing was the work of a burglar and it should be said that in relation to the lies told, the direction of the trial Judge clearly complied with the requirements of the leading cases, Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234. I note that in those cases the High Court spoke of the need for the lie to be capable of being related to a consciousness of guilt, as opposed to innocence, in the context of the offence charged.

51 I do not think the point raised by this ground has been the subject of a decision of the High Court, although for the appellant reliance is placed upon observations by Gaudron and Gummow JJ in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316. In that case the appellant and her son were charged with the murder (which in terms of WA law would have been the wilful murder) of the appellant's husband, a violent man who was becoming increasingly violent shortly before his death. They admittedly killed the deceased by a process which involved the appellant mixing sedatives with the deceased's evening meal. When he fell asleep the son struck him with an iron pipe and caused his death in the presence of the appellant. The appellant relied in provocation and self-defence and led expert evidence of "battered woman syndrome". She was convicted of murder.

52 The Crown relied in part on lies told by the appellant to conceal the death and give the impression that her husband had simply disappeared. They further relied upon a conversation between the appellant and a daughter. Both women apparently thought that the son who had been implicated in the killing had told another brother, who had spoken to the police. The tenor of the conversation was that this son should be warned that if he gave evidence against his mother and brother he would be knocked about or bashed.

53 These pieces of evidence were discussed by their Honours as being capable of constituting evidence of consciousness of guilt of what was described as "the premeditated murder" of the deceased, as opposed to the fact that the killing had occurred in circumstances excused by self-defence. If those remarks are translated into the circumstances of this case they are far from establishing that a proper direction of this kind ought to focus specifically upon the offence charged, that of wilful murder.

54 The point raised by this ground of appeal has been considered once by this Court in an unreported case to which our attention was drawn, Axford v The Queen, unreported; CCA SCt of WA; Library No 980200; 20 April 1998. The judgment of the Court was that of Franklyn J, with whom Malcolm CJ and Wallwork J agreed. The case was one of wilful murder, the applicant having killed a woman, coincidentally by cutting her throat. Again, a direction in terms of Edwards was given, but the contention was that the trial Judge erred because certain lies which might be relied upon to demonstrate a consciousness of guilt could only be so relied upon in respect of the offence of manslaughter and not of wilful murder or murder. At 26 of his judgment Franklyn J said the jury:

" ... was entitled to take into account the lies told if satisfied of their relevance as instructed by his Honour. It is not necessary the lie, if found to be a relevant lie, go directly to the issue of intent. The test of its relevance is that it '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'. (Edwards v The Queen [1993] HCA 63; (1993) 68 ALJR 40 at 48). That implication can only be by way of inference and, in my opinion, it may, in appropriate circumstances, result from the lie itself and, in other circumstances, from the lie considered together with other direct or circumstantial evidence. Whether or not the implication is to be made and in what respect it implicates the accused are matters for the jury. In my view it would be inappropriate and indeed wrong for the learned trial Judge to have directed the jury, as the applicant's counsel submits he should have done, that it could only use the lies to inculpate the applicant in the offence of manslaughter."

55 In Axford, apparently, the suggestion was that the lies told had no probative value, except in relation to establishing an intention to kill. I must say, for my part, with respect, that the view expressed in Axford appears to me to be right, and this ground of appeal is to be dealt with consistently with the reasons in Axford.

56 The point raised has been referred to in other Australian jurisdictions. The case of R v Woolley (1989) 42 A Crim R 418 was cited. That was a decision of the Court of Criminal Appeal of Victoria. It was a murder case. At 423-424 the Court said:

"It has been the practice to direct juries in cases of false denials or flight or similar cases in terms of whether the evidence in question demonstrates a consciousness of guilt of the offence charged. The reference to the offence charged is an obvious and usually convenient way of relating the conduct to the material wrongdoing, as opposed to some other wrongdoing. There is no authority for the proposition that the accused must be found to have acted out of a consciousness of guilt of a particular offence where the wrongdoing may cover a number of possible charges. ... it would, in our opinion, 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. ... [It] is not always meaningful to ask whether the accused was portraying consciousness of guilt of the crime charged, for at the point of time when the conduct occurs the accused is presumably not thinking of guilt of a specific offence, much less of a series of alternatives. Rather, the question is whether he is portraying a consciousness of being implicated in the actus reus, whether it be the killing or the robbery.

In the present case the directions given by the learned trial Judge did not, in speaking of consciousness of guilt, refer to each alternative to the principal charge on the presentment. For the reasons already indicated, it is not in our opinion necessary or indeed desirable to adopt such an artificial approach. The critical matters that had to be addressed in the context of this case were that the jury should understand that lies may be told for reasons that do not indicate consciousness of guilt of murder and that the defence explanations of self-protection or fear were put to the jury. The direction here clearly dealt with these matters."

57 Measured against that approach, the directions of the trial Judge in this case were couched in appropriate terms. His Honour put clearly to the jury that the use of the post-offence conduct, including the lies, as evidence of guilt was dependent upon the conduct being consistent only with a consciousness of guilt and that there was no innocent explanation for that conduct such as those advanced by the appellant - his panic, his fear generally, fear that he would not be believed in the account he gave and the like.

58 Woolley was followed by the Court of Appeal of Victoria in R v Rice [1996] 2 VR 406 and that case in turn was referred to with apparent approval in Nguyen, to which I have already referred. However, a little more time should be spent on the last-mentioned case in this context. It was a case where the appellant was charged with the murder of his stepson by deliberately shooting him at close range with a shotgun. The Crown's case was that the shooting was deliberate and accompanied by an intention to kill. The applicant's defence was that the weapon discharged accidentally while he was cleaning it. The Crown relied, at least to some extent, upon post-offence conduct in concealing the weapon and lying to the police. He told them that it appeared that an intruder had shot the deceased. At his trial he gave evidence that he had lied in panic, in shame at having just shot his stepson in close proximity to his mother, a desire to avoid being held responsible for what had happened and fear of being falsely implicated in a charge of murder by police, even though the shooting was accidental.

59 The case turns on the question whether the direction by the trial Judge, which appears not to have been in the standard Edwards form, was a misdirection in the circumstances of the case. In particular, there was an omission to refer to the possible reasons, other than by way of a realisation of guilt, for the conduct, including the lies. It was accepted in that case that the Crown primarily relied upon the evidence, with other circumstantial evidence, as being probative of the deliberate shooting with an intention to kill rather than the innocent accidental discharge of the weapon.

60 Members of the Court certainly speak of the evidence as implicating the applicant in the offence charged, but it is clear from the judgments that they do not intend to distinguish between that offence of murder and any particular lesser offence open upon the presentment. It was held that there had been a misdirection because the trial Judge was dealing with evidence which was not capable of proving guilt directly, but was certainly capable of proving guilt as part of a body of circumstantial evidence. The Court analysed the directions given, making the point that the nature of the directions required must depend upon the issues being fought between the parties at the trial. In the circumstances of that case, as it was put by Winneke P at 491 [21]:

" ... it became important for the judge to tell the jury that there may be explanations for the applicant's conduct other than a realisation of his guilt of murder, to tell them what those possible explanations might be, and to tell them that they could only use the evidence of the applicant's conduct as evidence of murderous intent if, at the end of the day, they were satisfied that there was no other innocent explanation available to explain that conduct."

61 Reference may be made generally to his Honour's judgment at 487-491 [18] -[22], to the judgment of Chernov JA at 496-497 [36] - [37] and the judgment of Smith AJA at 511 [87] - [90]. The distinction being drawn throughout is between the probative value of the evidence as part of a body of circumstantial evidence to prove guilt in the context of the offence charged and the alternative offences open on the indictment, as opposed to the evidence being consistent with some innocent explanation which would rob it of its probative force. The remarks of Winneke P in Nguyen were expressly proved by Kirby J in Conway v The Queen (2002) 209 CLR 203 at 237-238 [94] - [95].

62 R v Wehlow [2001] QCA 193; (2001) 122 A Crim R 63 was a case which came before the Queensland Court of Appeal. The direction of the trial Judge in relation to lies told after a killing was considered by the Court in the context of the particular issue live at the trial. The unlawful killing was not in issue. The question was whether the appellant had killed with an intention to kill or do grievous bodily harm, to negate which the defence relied upon her intoxication when she shot the deceased, a man with whom she then lived, in the back of the head at close range. The court upheld the direction, which it said made it sufficiently clear that the jury needed to be satisfied that the lies were told out of a realisation that the truth would implicate the appellant in the offence of murder, rather than the lesser offence of manslaughter for which she contended. In other words, in that case, which is not at all like this case in relation to the issues which were live before the jury, it was to be made clear that the evidence had to have probative value in relation to the issue of fact upon which the question of guilt depended at the trial.

63 One of the cases referred to in Wehlow was R v Richens [1992] EWCA Crim 3; (1992) 98 Cr App Rep 43 at 50-51. There it was held that the direction of the trial judge which invited the jury to consider whether lies told and the accused's conduct otherwise in endeavouring to conceal a killing were probative of the crime of murder, could not be sustained. But that case also turns upon its particular facts, because there the issue was whether the killing was done under the provocation of an admission by the deceased that he had intercourse with the accused's girlfriend in circumstances which she had complained constituted rape. So the question was whether the intentional killing was murder or whether the appropriate verdict was manslaughter on the ground of provocation.

64 The direction was held to be inadequate because it gave no attention to the question whether the circumstances may have been such as to provide a possible explanation for the conduct in question, not consistent with innocence, but, having regard to the issues on which the trial was fought, sufficient to deprive the evidence of probative value in the proof of guilt of murder. The question was whether the killing was a planned revenge killing or one which occurred spontaneously in the heat of sudden provocation. Again, the case seems to me to provide no authority for the proposition advanced, upon which the success of this ground depends.

65 In my opinion, the cases support no general proposition of the kind advanced by the appellant. It is not necessary, indeed it would generally be wrong, when wilful murder is charged, to invite the jury to consider as probative of guilt, lies told after the events in question and other conduct

occurring at that time in an effort to conceal the accused's involvement, only in a case where the lies may be said to be probative of an intention to kill.

66 Nor is it necessary as a matter of law, or would it generally be appropriate, to direct the jury to consider whether such post offence conduct was probative of an intention to kill, an intention to do grievous bodily harm or merely an unlawful killing. In a case such as this where there were a number of factual issues before the jury relevant to the question of the appellant's guilt or innocence and, if he was guilty, of what offence, the relevance of the post-offence conduct could not properly be placed in any particular compartment of specific issues live at the trial. The direction given was in terms which were appropriate to the case and the issues it raised and to the explanations proffered by the appellant to explain his behaviour consistently with his innocence. This evidence was part of a body of circumstantial evidence which, with other evidence, was probative of the appellant's guilt of wilful murder, murder or manslaughter, given that the jury rejected the innocent explanations proffered. The trial Judge did not err by his failure to give the directions sought and I would not uphold ground 1.

68 PARKER J: I agree with Murray and McLure JJ that this appeal should be dismissed.

69 I am grateful to their Honours for the analysis of the evidence and the issues in the trial, which I need not repeat, and subject to what follows I find myself generally in agreement with the reasons of each of their Honours.

70 I would only wish to add the following observations on the issue of post-offence conduct.

71 At the trial counsel then appearing for the appellant sought a re-direction concerning the post-offence conduct of the appellant. While this submission was directed primarily to lies, its substance applied equally to the other post-offence conduct of the appellant on which the prosecution relied as evidence of guilt.

72 What was sought was a direction that before a lie could be relied upon by the jury as evidence of guilt the lie must be told because of a realisation of guilt of the offence charged, ie wilful murder. It was

specifically submitted that the lie had to reveal a consciousness of every element of the offence charged, and that it was not sufficient that the lie evidenced a consciousness of guilt of merely an element of the offence charged. The decision of the High Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 was relied on in support of this submission.

73 In my respectful view his Honour was correct to resist this submission. The decision in Edwards not only does not support this submission, but reveals it to be erroneous. In the joint reasons of the majority, Deane, Dawson and Gaudron JJ, in Edwards at 210 - 211 the following passage appears:

"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should 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, or, as was said in Reg v Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'.

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. ... It should be recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters."

74 As is made expressly clear in that passage from Edwards, it is not necessary that the lie reveal a knowledge of the offence charged, it is sufficient that it reveal a knowledge of an aspect of the offence charged (emphasis added).

75 Further, it is not required that the lie reveal a knowledge of all elements of the offence, or even of one or some of them. As is expressly stated in the passage cited from Edwards, what is required is that the lie be "concerned with some circumstance or event connected with the offence (ie it relates to a material issue)". The point of concern is not with the legal elements of an offence, but with the conduct of the appellant in committing the offence, or, in respect of a circumstance or event connected with the offence. An obvious example would be a lie as to an attempt, after a homicide, to dispose of the body.

76 In the present case, the legal effect of the indictment which charged wilful murder, when taken with the statutory alternative offences open on the indictment, was to allege that the appellant unlawfully killed Mr Downie in circumstances that constituted any one of wilful murder, murder or manslaughter. For the purposes of this trial they were the offences charged. The majority of the elements of each of those three offences were identical.

77 The appellant put in issue virtually every possible aspect of these offences at the trial. It was a live issue whether Mr Downie died by virtue of an act of the appellant, ie causation. Both limbs of s 23 of the Criminal Code, ie whether the appellant's act which caused the death was willed, and whether the death was an event occurring by accident, were live issues. If those matters were established, the appellant relied on self-defence. Hence, to establish any one of manslaughter, murder or wilful murder it was necessary for the prosecution to establish that Mr Downie died by the willed act of the appellant, that his death was not an event occurring by accident, and that the appellant was not acting in self-defence. Each of these was very much in issue.

78 In addition to those issues, there was the further element of intention. In the case of murder the appellant must have intended to cause grievous bodily harm and in the case of wilful murder he must have intended to cause death. Even if all the elements of wilful murder or murder were established, the appellant relied on provocation to reduce the homicide to manslaughter (Code s 281).

79 Quite separate from those issues, also alive in the trial on the appellant's own evidence was the issue whether he was guilty of manslaughter by virtue of his criminal negligence in the handling of the knife.

80 This was not a trial, therefore, in which only one issue such as intention, or a limited number of issues were live for the consideration of the jury. A number of the authorities relied on by the appellant reflected the special considerations relevant to such a trial.

81 In the circumstances of this case, lies or other post-offence conduct of the appellant may well, but need not, have been seen by the jury to be relevant to any one or more of the live issues. In particular, the lies or post-offence conduct need not have been relied on at all by the jury when considering the issue of intention for the purposes of wilful murder or murder. There was, for example, other evidence capable of satisfying the jury of an intention to cause death in the case of wilful murder, without regard to the lies and the other post-offence conduct, eg the medical evidence as to the nature and number of wounds to Mr Downie. Indeed, in respect of each live issue there was a range of evidence on which the jury might rely.

82 In this case, therefore, it is a mistake to contemplate that the lies or the other post-offence conduct might, in isolation, have evidenced guilt by reference to all elements of any one of the offences open on the indictment. That may have been the view of the jury, but it need not have been. By way of illustration, the jury may have had regard to the lies only for the purpose of determining causation. Further, the jury may not have been persuaded of guilt as to any one element of any offence open by reference to the lies or the other post-offence conduct considered in isolation, but only when it was considered as part of a wider body of evidence the jury saw to be relevant to that element.

83 The essential point of the decision in Edwards is that before lies are relied on by the jury as probative of guilt, whether it be as to any one or more of the elements of an offence open on the indictment, and whether considered in isolation or together with other evidence, the jury should be properly warned in particular against reasoning that because an accused has lied he must be guilty, and to ensure that the jury are alert to the possibility that a lie or other post-offence conduct may have an "innocent explanation", ie in this case an explanation that would not implicate the appellant in the killing, in which event the lies or other post-offence conduct should not be relied on as probative of guilt.

84 The submissions for the appellant placed much emphasis on the words in the decision in Edwards "would implicate him in the offence", and on the phrase often used in reported decisions in this context "a consciousness of guilt of the offence charged". The submission was that this is a deliberate and critical reference to the offence set out in the indictment, ie in the present case to wilful murder, and to no other offence. In my respectful view, in most circumstances these phrases are a convenient reference to the criminal conduct alleged against the accused. In a case such as the present, however, the criminal conduct is constituted by the homicide. That is so whether, in the end, the homicide proves to be manslaughter, murder or wilful murder. The comments of the Court of Criminal Appeal of Victoria in R v Woolley (1989) 42 A Crim R 418 at 423 - 424, which was relied on by the Court of Appeal in R v Rice [1996] 2 VR 406 at 415 - 416, are helpful in this context. As was there said in the particular context of false denials or flight:

"Thus, where a serious assault has taken place, it would be fanciful to make possible resort to the conduct in question by the jury depend on whether the accused had a consciousness of guilt of particular offences such as causing grievous bodily harm, or actual bodily harm or common assault. It would in our opinion be equally fanciful to require as a pre-condition to possible use of the conduct that the accused had turned his mind to particular alternatives such as murder or various categories of manslaughter.

That is not to say that a jury should not consider the particular conduct in the light of a particular charge where there are a number of separate charges, whether as separately listed counts on the presentment or as statutory or common law alternatives of the count or counts on the presentment. This is part of the jury's obligation to consider each charge separately. Thus, the jury would be obliged to consider the evidence relevant to each count separately and so consider as part of this evidence the conduct in question, whether it be lies or flight."

85 In the present case, the jury were directed adequately with respect to the dangers about the misuse of lies with which the decision in Edwards is concerned. The jury were also directed adequately, in terms to which no objection is taken, in respect of the elements of the offence of wilful murder including intention, with respect to inferences and as to the need to separately consider each offence open on the indictment. In the circumstances of this case those directions, together, were adequate to guide the jury as to the use of the lies and the other post-offence conduct as they considered each element which the prosecution had to establish to prove the guilt of the appellant of wilful murder, which was the verdict returned by the jury

86 In my view, it would have been quite erroneous for the jury to have been directed on the issue of lies and other post-offence conduct as the defence counsel sought at the trial.

87 MCLURE J: The appellant was charged with the wilful murder of Ronald James Downie at Port Hedland on 16 December 2000. After trial he was convicted in the court at South Hedland on 21 May 2002 of wilful murder.

88 The appellant appeals against his conviction on three grounds. The first relates to post offence conduct, the second to motive and the third to whether there was a reasonable apprehension that some jurors were biased.

89 The Crown case was that the appellant intentionally and unlawfully killed the deceased by cutting his throat at least four times.

90 The deceased was a psychologist working at the North-West Mental Health Service. The appellant had a drug problem and was a patient of the deceased. On 16 December 2000 the appellant consumed drugs and alcohol. On the night of 16 December he attended a party at a caravan park. He left the party on foot and went to the deceased's home. The appellant punched the deceased, slit his throat with a knife at least four times and left him on the hallway of the house bleeding heavily from his neck wounds.

91 Before leaving the deceased's home, the appellant took some items to make it appear as if it was a burglary gone wrong. He placed the items into the deceased's vehicle which he drove to a place called Pretty Pool where he left the vehicle and walked home. The following morning the appellant returned to the deceased's vehicle and drove it to the Four Mile Creek area where he scattered the stolen items in the mangroves. The appellant then drove the deceased's vehicle back to the deceased's home.

92 The appellant was interviewed by police on 24 December 2000 and 3 January 2001. He lied to police on both occasions saying he was not involved in the deceased's death. He was further interviewed by police on 14 March 2001 and admitted that he was involved in the death of the deceased but that he had not killed him intentionally.

93 The appellant gave evidence. He said he went to the deceased's house on 16 December 2000 because he was depressed. After talking with the deceased for some time, the appellant fell asleep on the couch and when he awoke, the deceased was touching his penis. He was frightened and confused and punched him in the face. The deceased started bleeding from his nose. The appellant tried to get out the front door but needed keys. He turned around and saw the deceased standing in the kitchen with a knife in his hand. The appellant tried running past the deceased to the back door and may have hit the deceased with his left forearm. He could not get out the back door without keys.

94 When the appellant went back, the deceased had a much larger knife. A struggle occurred in the passageway near the bathroom/toilet. They were banging around on the walls, and at some stage they fell onto the floor or bed in a bedroom. The struggle continued back out to the passageway, blood shot out and hit the appellant in the face and arm, and then the deceased fell. The appellant did not recall grabbing the knife at any stage. He said he panicked and it took a while to find the door keys. He did not think anyone would believe what had happened, so he started grabbing items from the house. He never intended to kill or harm the deceased. The punch to the deceased's face after he awoke was not meant to injure him but to get the deceased away from him.

95 On an indictment for wilful murder, there are four possible verdicts: guilty of wilful murder, guilty of murder, guilty of manslaughter or not guilty.

96 The element of unlawful killing is common to each of the offences. An accused who unlawfully kills a person intending to cause death is guilty of wilful murder. If an accused intended to do grievous bodily harm, the accused is guilty of murder. Proof of an unlawful killing with no proof of any intention to kill or cause grievous bodily harm is manslaughter.

97 The appellant did not, either in evidence or by way of formal admission, admit that he caused the death of the deceased. The matters in issue on which the trial Judge directed included:

(a) whether the appellant caused the death of the deceased;

(b) whether the relevant act was his willed act or occurred by accident (in terms of s 23 of the Criminal Code (WA));

(e) the alternative verdicts open on the indictment and in particular intention; and

(f) provocation (if the jury rejected self-defence and concluded that the appellant's intention was to kill the deceased or cause him grievous bodily harm).

98 The appellant appeals against his conviction on the ground that:

"The learned Judge erred in law in failing to adequately direct the jury in relation to the post offence conduct.

Particulars

(a) Such conduct could only be used as proof of guilt of wilful murder if they were satisfied that the appellant only engaged in the conduct because of a consciousness of guilt of wilful murder.

(b) Such conduct could stem from other reasons, and if they accepted that it stemmed from consciousness of guilt of some other crime, such as murder or manslaughter, or simply from consciousness of having been involved in a killing, they should not use the evidence as probative of guilt of wilful murder."

99 The trial Judge gave an Edwards direction (based on the decision of the High Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193) in relation to the appellant's lies to police in the early stages of the investigation and the appellant's conduct in attempting to conceal his presence at the deceased's house at the time of the killing and to make it look as though there had been a robbery so as to divert attention from himself. It is not in dispute that an Edwards direction was appropriate in these circumstances. The question at issue is the content of an Edwards direction in circumstances where alternative verdicts are available.

100 The Edwards principle is formulated in terms of guilt of the offence charged. Ordinarily, the telling of a lie merely affects the credit of the witness who tells it. However, a lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount to an implied admission of guilt: Edwards v The Queen (supra) at 208. A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Where lies are relied upon to prove guilt, the lie and the circumstances and events that are said to indicate that it constitutes an admission against interest should be precisely identified. Further, the jury has to be instructed that they may take the lie into account only if they are satisfied, having regard to the 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 events or because of a realisation of guilt and a fear of the truth. The jury has to be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the events: Edwards v The Queen (supra) at 210 - 211 per Deane, Dawson and Gaudron JJ.

101 The trial Judge's direction was in accordance with Edwards v The Queen (supra). In the course of his direction, he referred on at least six occasions to the use of lies as evidence of guilt of the offence with which the accused had been charged. It was accepted that the appellant had lied on a number of matters in his initial interviews with police. The lies included that he had not seen the deceased since his appointment the Wednesday before 16 December 2000; that he first heard about the deceased's death by rumour and had attended for his appointment with the deceased on 18 December 2000; that he had gone straight home after the party and that in the course of performing gardening services for the deceased he had been inside the deceased's house. The appellant subsequently admitted that he had not been in the deceased's house before the night in question and had told the lie so that he would have an alibi if forensic evidence established his presence inside the house. The trial Judge also referred in detail to the range of reasons for his lies, apart from a consciousness of guilt. He referred to the appellant's explanation for his conduct which included panic, fear, confusion, not thinking straight and because he thought no-one would believe his account of what the deceased had done to him and what had happened after that.

102 After detailing the lies the trial Judge continued:

"The evidence about the [appellant's] attempts to conceal his presence at the scene and to make it look like a robbery gone wrong and his dumping of items taken from the house or items belonging to him which he thought might lead the police to him should be approached by you in the same way as lies as evidence of guilt. You would need to ask yourselves what does this evidence say, if anything, about whether or not the [appellant] unlawfully killed [the deceased]. What does it say, if anything, about whether he had any particular intent at the time or is it evidence from which you could draw no inference against the accused because those things were done, as he claims, simply out of confusion and panic because [the deceased] had died in terrible circumstances in which the [appellant] had been innocently involved."

103 Defence counsel sought a redirection on the matter. He submitted that before lies could be used as evidence of wilful murder, the lies had to be told because of a consciousness of guilt of wilful murder and not of consciousness of guilt of some other offence. The trial Judge declined to redirect.

104 The appellant submitted that the trial Judge should have directed the jury that:

(a) the post offence conduct could only be used as proof of guilt of wilful murder if they were satisfied that the appellant only engaged in the conduct out of a consciousness of guilt of wilful murder;

(b) the post-offence conduct could stem from a realisation of guilt of murder or manslaughter or simply guilt of having been involved in a killing; and

(c) if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt of wilful murder.

105 In oral submissions the appellant's counsel submitted that the trial Judge should have directed the jury that they had to be satisfied that the post offence conduct was corroborative of an intention to kill.

106 The appellant relied on a number of authorities in support of this ground, including R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479, R v Wehlow [2001] QCA 193; (2001) 122 A Crim R 63, R v Chevathen & Dorrick [2001] QCA 337; (2001) 122 A Crim R 441 and R v Richens [1992] EWCA Crim 3; (1992) 98 Cr App Rep 43.

107 In Nguyen (supra) the applicant was convicted of murdering his stepson. He was alleged to have killed him with a shot fired deliberately from a double barrelled shotgun at close range. The issues in the trial were whether the applicant had deliberately discharged the firearm with intent to kill or do serious injury. At trial the applicant claimed the killing was unintentional and that the gun had discharged accidentally whilst he was cleaning it. The applicant almost immediately left the scene and disposed of the weapon, firstly by concealing it in bushes nearby and later disposing of it elsewhere. Thereafter he initially pretended to police that some unknown intruder had been responsible for the shooting. He claimed to have been sitting in the lounge room with his wife. The trial Judge concluded that once the applicant had admitted the act which caused the deceased's death, the post offence conduct was equivocal on the question of guilt and thus could not be used by the Crown as evidence of guilt of the offence charged. However, the trial Judge permitted the Crown to submit to the jury that the post offence conduct was relevant to proof of material elements of the offence, in particular voluntariness and intent. The trial Judge did not give an Edwards direction. On appeal it was held the trial Judge had erred in not giving an Edwards direction because the post offence conduct, together with other circumstantial evidence, was potentially probative of guilt and there was a risk the jury might use the post offence conduct as evidence of guilt. Winneke P said (at 489):

"The probative strength of post-offence conduct, ... will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused's mind at the relevant time, the conduct will have to be assessed in the light of the probabilities. But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, ... a careful direction from the trial judge of the type referred to in Edwards. Such a direction should have involved a specific identification by the trial judge of the conduct being relied upon by the Crown to prove murderous intent; a direction that they could only use such conduct as proof of guilt if they were satisfied that there was no other explanation, consistent with innocence for it; and the accused only engaged in the conduct because he knew that revelation of the truth would implicate him in the offence charged. Properly directed, the jury should also have been told that conduct such as that relied upon by the Crown could stem from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt."

This passage was cited with approval by Kirby J in Conway v The Queen (2002) 209 CLR 203 at 237. However, Winneke P's reasons, in particular his statement that the Judge should have identified the conduct relied on to prove murderous intent, have to be seen in the context of the issue that arose in that trial, namely the use of post offence conduct to support a finding of intention and thus guilt.

108 In R v Wehlow (supra) the appellant was convicted of the murder of a man with whom she lived. She shot him in the back of the head at close range. The defence was that there was an unlawful killing but no relevant intent because the appellant was intoxicated. The prosecution did not contend at trial that the lies demonstrated a consciousness of guilt. Rather, the submission was that the lies established a pattern of calculated deceit from which the jury could infer that the appellant had the intention of causing death or grievous bodily harm. The trial Judge was concerned that the jury might infer from the prosecution address that the telling of lies could be evidence of guilt and he gave an Edwards direction. He said:

"However, it would be quite wrong for you to approach the case on the basis that if the accused told lies, she must be guilty of the offence charged or the alternative of manslaughter.

...

If you conclude that those lies were told and were motivated by a consciousness of guilt in respect of this offence, well you may reach a conclusion that the telling of those lies was indicative of guilt. ... "

"Now, I gave you some directions about the use you could make of lies in consciousness of guilt. I direct you this way. Before you can use the lies as evidence of a consciousness of guilt of the crime of murder you must be satisfied that they were designed to cover or conceal the offence of murder rather than an offence such as manslaughter. In other words you might think in this case that the lies could only be used as a consciousness of guilt of a killing, not of either murder or manslaughter, just of a killing."

109 The appellant complained that the redirection left open the possibility that the jury would reason that lies were indicative of a consciousness of guilt of murder when that was not reasonably open, relying on R v Richens (supra). The Queensland Court of Appeal held that the initial direction was deficient because it had not made sufficiently clear that the jury needed to be satisfied that the lies were told out of a realisation that the truth would implicate the appellant in the offence of murder rather than something less (for example, manslaughter). However, it was said the deficiency was adequately remedied in the redirection.

110 In R v Richens (supra), the appellant, a young man, was charged with the murder of a fellow student who claimed that he had had a consensual sexual encounter with the appellant's girlfriend. The appellant became enraged and stabbed the deceased. The appellant, with the assistance of his girlfriend, disposed of the body and he then left the country. The appellant lied to police concerning his involvement. The appellant was charged with murder. At trial the only issue was whether the killing was murder or manslaughter by reason of provocation. The trial Judge in his direction invited the jury to consider whether the appellant's post offence conduct was potentially probative of murder. The Court of Appeal concluded that the trial Judge erred in failing to give a direction to the effect that the jury had to be sure that there was not some possible explanation for the lies which destroyed their potentially probative effect. The Court said that the jury would have concluded that they could not treat the lies as probative of murder rather than manslaughter on the basis that a man who kills by reason of a loss of self control, and therefore faces arrest, trial and possible lengthy imprisonment, may have almost as strong reasons for attempting to conceal his act and lie about his involvement as a man who has killed deliberately.

111 R v Richens (supra) was followed by the Queensland Court of Appeal in Chevathen & Dorrick (supra). In that case the mother and stepfather of a 4-year-old girl were convicted of her murder. The girl had been beaten and died of head injuries. Evidence was led of lies by both appellants about the death of the girl, although not (purportedly) as consciousness of guilt. The evidence of lies was not the subject of an Edwards direction. The only live issue at the trial was intent to kill or cause grievous bodily harm. The Court said that the lies could not fairly be regarded as advancing the Crown case on intention because the lies were as explicable upon awareness of general wrongdoing as they were upon any consciousness of murder and that a Richens direction should have been given.

112 It is to be observed that none of these cases directly address the question in issue in this appeal. The appellant's counsel did not suggest that the post offence conduct was inadmissible or not probative on the question of intention to kill. Indeed such a proposition has already been rejected in this jurisdiction in Axford v The Queen, unreported; CCA SCt of WA; Library No 980200; 20 April 1998. In Axford v The Queen (supra) the applicant was found guilty of wilful murder. It was the Crown case that the applicant killed the deceased by cutting her throat with the intention of killing her. The applicant's case was that although he inflicted the wounds, they were unintentionally inflicted. The Crown relied on lies told by the applicant and other post offence conduct. The trial Judge gave an Edwards direction, the terms of which do not appear in the reasons. The applicant's case was that the lies could not be used to show consciousness of guilt of any other offence but manslaughter. The reasons of the court were given by Franklyn J. He said (at 26):

"The charge faced by the applicant was that of wilful murder. That was for the jury to firstly consider. It was entitled to take into account lies told if satisfied of their relevance as instructed by His Honour. It is not necessary that the lie, if found to be a relevant lie, go directly to the issue of intent. The test of its relevance is that it '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'. ... That implication can only be by way of inference and, in my opinion, it may, in appropriate circumstances, result from the lie itself and, in other circumstances, from the lie considered together with other direct or circumstantial evidence. Whether or not the implication is to be made and in what respect it implicates the accused are matters for the jury. In my view it would be inappropriate and indeed wrong for the learned trial Judge to have directed the jury, as applicant's counsel submits he should have done, that it could only use the lies to inculpate the applicant in the offence of manslaughter."

113 The Edwards requirements that the lie relate to a material issue and be an implied admission of guilt do not necessarily have to be proved beyond reasonable doubt. As the Court in Edwards v The Queen (supra) said (at 210):

"If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."

114 There is no inconsistency between the decision in Axford v The Queen (supra) and the decisions on which the appellant relies. It did not matter in Axford v The Queen (supra) that the conduct relied on did not go directly to the issue of intent because the post offence conduct was part of a broader circumstantial case which could affect the inferences to be drawn. In this case the Crown also relied on the post offence conduct in combination with other matters including the number and severity of the wounds inflicted on the deceased in support of its case of wilful murder.

115 As I have said, the point taken by the appellant in this case is different to that considered in Axford v The Queen (supra). The appellant does not say that the question ought not to have been left to the jury. His case is that the jury should have been directed as to the use of post offence conduct in respect of each of the possible verdicts.

116 That issue was considered by the Victorian Court of Criminal Appeal in R v Woolley (1989) 42 A Crim R 418. In that case a number of people were charged with murder. The Crown case was that there was a common purpose between the accused to murder the deceased. The defence was that there was no common purpose but that one of their number acted in a frenzy of his own. The appellant complained of the directions to the jury in relation to lies he told out of court concerning a concocted account as to when and where he last saw the deceased and lies which the jury might find were told by him in his police interviews about the way in which the deceased met his death. The trial Judge gave an Edwards direction in which he referred to consciousness of guilt of the offence with which the accused was charged. The appellant submitted that the jury should have been directed to the possibility that lies may have been told to conceal complicity in some crime other than that charged. In particular, it was said the jury should have been told that the lies might have been evidence of consciousness of guilt of only manslaughter or to being an accessory after the fact, both being alternatives that were left to the jury.

117 The Court rejected the proposition that before post offence conduct could be placed before the jury the accused must have acted out of a consciousness of guilt of a particular offence in situations where the wrongdoing may cover a number of possible charges. I take this to be a rejection of the position that post offence conduct is inadmissible if it is equivocal in relation to guilt of the offence charged. That is the law in Canada: R v White (1998) 125 CCC (3rd) 385. To the extent that Woolley v The Queen (supra) is authority for the proposition that it is sufficient if the post offence conduct betrays "a consciousness of being implicated in the actus reus" that, in my view, is inconsistent with Edwards v The Queen (supra). The lie must relate to a material issue and no doubt in many cases the lie will relate to the act in question, in this case the killing. It is not suggested that the lie must directly relate to all of the elements of the offence the subject of the charge. However, whether the lie can in fact go further and support an inference of guilt must be assessed by reference to all of the elements of the offence and those other elements are brought into focus in the part of the Edwards direction that requires the trial Judge to explain that there may be reasons for lying other than a consciousness of guilt of the offence under consideration.

118 As to what should be said when there are alternative verdicts, the Court in Woolley v The Queen (supra) said (at 424):

"That is not to say that a jury should not consider the particular conduct in the light of a particular charge where there are a number of separate charges, whether as separately listed counts on the presentment or as statutory or common law alternatives of the count or counts on the presentment. This is part of the jury's obligation to consider each charge separately. Thus, the jury would be obliged to consider the evidence relevant to each count separately and so consider as part of this evidence the conduct in question, whether it be lies or flight. No doubt in this process it may be useful to ask whether the conduct betrays a consciousness of guilt of that charge but this is not an obligatory formula. It would seem preferable for the jury to be directed that if they are satisfied that the statements were made and were not true, then it is open to the jury to add these statements to other evidence to assist in drawing an inference of guilt. The drawing of inferences will itself be the subject of a separate direction ... .

...

In the present case the direction given by the learned trial judge did not, in speaking of consciousness of guilt, refer to each alternative to the principle charge on the presentment. For the reasons already indicated, it is not in our opinion necessary or indeed desirable to adopt such an artificial approach. The critical matters that had to be addressed in the context of this case were that the jury should understand that lies may be told for reasons that do not indicate consciousness of guilt of murder and that the defence explanations of self-protection or fear were put to the jury. The direction here clearly dealt with these matters."

119 The content of a direction on post offence conduct as probative of guilt will vary according to the nature and extent of the live issues at trial. In most of the authorities relied on by the appellant, the matters in issue were confined to one or two issues centred on intent. In such situations and where the post offence conduct is or may be equivocal on the question of intent, it may be appropriate to specifically address the jury on that issue although I express no concluded view on it. However, this is not a single issue case. Further, the post offence conduct is only one of a number of circumstances from which the jury were asked by the prosecution to draw an inference of guilt. In those circumstances, the suggested direction is unduly restrictive and not appropriately adapted to this case.

120 I accept the jury should be made aware that the post offence conduct, like all the other evidence at trial, is to be considered in relation to each possible verdict. In this case, the question was whether the post offence conduct, together with other circumstances which the jury found to be proven, constituted an implied admission by the appellant of the guilt of the particular offence under consideration by the jury, whether it be wilful murder, murder or manslaughter. However, I agree with the Court in Woolley v The Queen (supra) that there is no particular formula required to convey that information. The trial Judge in this case effectively conveyed the requirement by referring to the individual elements relevant to the alternative verdicts. The point was reinforced when the trial Judge gave as a possible reason for the post offence conduct the fact that the appellant thought no-one would believe his account. That account addressed in substance all of the live issues covering all available verdicts. In my view, the trial Judge's Edwards direction was appropriately adapted to the circumstances of the case.

121 Even if that conclusion is incorrect, the trial Judge's repeated reference to guilt of the offence charged would at worst be understood by the jury as a reference to wilful murder which, because it requires proof of an intention to kill, has a more onerous consciousness of guilt threshold than that required for murder or manslaughter, in which case the direction is to the appellant's advantage. I would dismiss this ground of appeal.

122 The second ground of appeal relates to motive. It is in terms that:

"The learned Judge erred in failing to adequately direct the jury in relation to motive.

Particulars

(a) Having directed the jury that the Crown didn't have to prove motive, the learned Judge failed to direct the jury that the absence of proved motive was a consideration favouring the appellant.

(b) The learned Judge failed to refer the jury to the evidence from which an inference could be drawn that the appellant had no motive; that is, evidence which tended to prove an absence of motive, rather than merely an absence of evidence as to any motive.

(c) During his closing address, the learned Crown prosecutor raised some possible motives for the killing. That was done in perfunctory fashion, and the possibilities raised had no evidentiary basis. The learned Judge failed to direct the jury to disregard those remarks."

123 The trial Judge directed the jury that the Crown did not have to prove motive. However, he did not direct the jury that the absence of proof of motive was a consideration favouring the appellant. Defence counsel sought a redirection in relation to motive. He submitted there ought to have been a comment relating to the complete lack of motive for the killing, as he had put to the jury in his closing address. This submission can only relate to the lack of motive for the killing based solely on the Crown's case.

124 The first particular concerns a direction to the effect that there was no evidence of motive, rather than proven absence of motive (or positive evidence of lack of motive). Although counsels' closing addresses were not in the appeal book, I infer from counsel's request for a redirection that he had said to the jury that there was proven absence or at least evidence of an absence of motive. A direction as to there being no evidence of motive would not have assisted the defence case in the way it was put by defence counsel to the jury. Further, the fact that there is no evidence of a motive to commit the relevant crime may not always be a fact unequivocally in the accused's favour, particularly where the offence was committed under the influence of alcohol and drugs. In the circumstances of this case there is no relevant unfairness to the accused in the trial Judge failing to refer to no evidence of motive: De Gruchy v The Queen [2002] HCA 33; (2002) 190 ALR 441 at [30] - [32] per Gaudron, McHugh and Hayne JJ and [57] per Kirby J.

125 The second particular relies not on the absence of evidence of motive but that there was evidence which tended to prove an absence of motive. In this case there was evidence to the effect that the appellant was happy with the counselling provided by the deceased and felt no animosity towards him. Thus, there was evidence that tended to negate possible motives but did not prove the absence of motive. In those circumstances it is correct to categorise the case as being one where there was no evidence of motive: De Gruchy v The Queen (supra) at [30] - [32]. The trial Judge's directions as to motive were not inadequate in the circumstances as discussed.

126 Finally, it is submitted that in light of the prosecutor's suggestion of possible motives for the killing in his closing address for which there was no evidentiary basis, the trial Judge should have directed the jury to disregard the remarks. The relevant part of the prosecutor's direction is as follows:

"Ladies and gentlemen of the jury, you might think that what happened on this particular day was this: the [appellant] fell off the wagon and went back to alcohol and drugs after coming to Port Hedland to rehabilitate himself so that he could try and reconcile with his girlfriend, ... In his depressed state and affected to some extent by alcohol and drugs, he went around to [the deceased's] house.

Maybe he blamed [the deceased] for his failings. Maybe he transferred responsibility for his own actions on to those who were trying to help him. Whatever the reasons, he somehow entered [the deceased's] house uninvited and callously punched [the deceased] with multiple blows to the face as he lay sleeping in his bed."

The appellant relied on R v Ritter, unreported; CCA of NSW; Library No 60485 of 1994; 31 August 1995 and R v Nguyen (supra) at [23] per Winneke P. In both cases the prosecutor suggested for the first time in closing that there was evidence from which the jury could infer a specified motive. In fact the evidence did not provide any proper factual foundation for the suggested motives. This is a different case. The prosecutor referred in the first paragraph to evidence (and inferences open on the evidence) and then in effect openly conjectured as to possible further inferences which in the end, he says, do not matter. In context, his submission is to the effect that motive or lack of it is not significant because the appellant was depressed and had consumed alcohol and drugs. I see no error that required the trial Judge to address the matter in his summing up. Neither did experienced counsel for the appellant who did not seek a redirection. I would dismiss this ground of appeal.

127 The appellant says there was a miscarriage of justice as a result of a reasonable apprehension that some jurors were not impartial. The substance of this ground is that the evidence established that a number of the jurors had a close working relationship with the appellant's stepbrother and that the general atmosphere at the stepbrother's place of employment was one of coldness and unpleasantness towards the stepbrother from which it could be inferred that a partial view had been taken by those jurors who then sat in judgment on the appellant. Essentially, the claim is one of prejudgment.

128 The test to be applied is whether the facts relied on are such that, notwithstanding any proposed or actual warning of the Judge, they give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge their task impartially: Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41.

129 It was accepted by the appellant that the trial Judge had properly warned the jury panel of relevant matters prior to the empanelment of the jury. In particular, the trial Judge gave the standard warning concerning whether they had any knowledge of any of the witnesses or people involved in the trial of such a kind as they considered may be one which would have a potential or might have a potential to interfere with their objective and independent consideration of the evidence. The trial Judge also referred to the possibility that matters relating to the offence had become the subject of wide public discussion in Port and South Hedland and that it was essential for the jury to decide the case on the evidence properly led before it and nothing else.

130 In my view the evidence falls well short of any suggestion that there is any relevant prejudgment of the issues by the relevant jurors or that they would do otherwise than heed the very clear warnings given by the trial Judge. The attitude complained of arose after it became clear that the appellant was then a focus of police interest and he was charged. It is to be expected, particularly in a small community, that in such circumstances adverse inferences are drawn against an accused. Indeed that is recognised in the principles of the law of defamation. Much of a trial Judge's introductory remarks in a criminal trial are intended to address these very issues. In so far as this ground of appeal is directed at jury animus to the witnesses themselves, I agree with the reasons of Murray J. I am satisfied that the material does not give rise to a reasonable apprehension that a juror had not discharged his or her task impartially. I would dismiss this ground of appeal.

Banks v The Queen [2003] WASCA 198

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Banks v The Queen [2003] WASCA 198 (29 August 2003)

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Cases Cited (16)