1 After a trial in the Supreme Court lasting some eight days, the appellant, Matthew Brooks, was convicted of the murder of his partner, Priscilla Chapple. He was sentenced to 17 years' imprisonment. A non-parole period of 13 years was fixed.

2 On 18 May 2012, Neave JA granted leave to appeal against conviction upon the following ground:

Ground 1 That the learned trial judge:

(a) erred in permitting the Crown to use the appellant's alleged lie that the deceased committed suicide as evidence of consciousness of guilt; or

(b) erred in failing to warn the jury of the need for care in deciding whether this alleged lie was an implied admission to murder as opposed to manslaughter.

3 Her Honour refused leave to appeal on a second ground, which related to other post-offence conduct which the jury had been invited to consider as evidence of consciousness of guilt.

4 The appellant and the deceased had been in a de facto relationship for some time. They were both deeply troubled individuals. There was a history of conflict between them.

5 Some time between 4:15am and 5am on 1 September 2006, the deceased was fatally stabbed. At about 6:30am, the appellant, in a state of obvious intoxication, knocked on his neighbour's front door. He appeared highly agitated. He said to his neighbour, inter alia: 'I've killed my family'.

6 Shortly afterwards, the appellant telephoned the police. He told the officer with whom he spoke that three members of his family were dead. He threatened to kill himself. He said that his partner had been stabbed, and later added that she had 'cut her throat'.

7 When police arrived at the appellant's home, he was heard to say 'shoot me, just shoot me'. Subsequently, he told a police officer that he did not know why he had been taken to the police station. He claimed not to be aware that his partner was dead.

8 The appellant was in no fit state to be formally interviewed on that day. It was not until three days later, on 4 September 2006, that he participated in a lengthy record of interview. Before doing so, he told police that Ms Chapple had killed herself because of family troubles.

9 In the course of his record of interview, he gave a detailed account of the circumstances surrounding his partner's death. He insisted that she had armed herself with either one or two knives, and that she had stabbed herself to death. He claimed that he had struggled with her in an effort to disarm her, but that she had somehow managed to stab herself in the chest.

10 The appellant's case at trial was perfectly straightforward. Through his counsel, he denied having stabbed the deceased. He referred to her troubled history, and said that she had previously attempted suicide. His case was, as he had claimed in his record of interview, that she had taken her own life.

11 The prosecution case was equally straightforward. The Crown contended that the appellant had stabbed the deceased during the course of a violent dispute between them. In support of that contention, the Crown relied upon various admissions that it attributed to the appellant. These included his statement to his neighbour that he had 'killed [his] family', as well as his somewhat bizarre behaviour after the police arrived at his home. The Crown also relied upon what the accused said to police on the morning in question, as well as in his record of interview. It contended that he told a series of lies that evinced consciousness of guilt. Finally, the Crown relied upon evidence from the deceased's sister regarding the fraught nature of the appellant's relationship with the deceased as rendering it likely that he had killed her.

12 In one sense, therefore, the issues for the jury's consideration were relatively simple. Had the Crown established that the appellant stabbed the deceased and thereby caused her death? If so, had the Crown proved that he had done so with murderous intent? Alternatively, was there, as the defence contented, a reasonable possibility that the deceased had taken her own life?

13 There were several key witnesses whose evidence I should briefly summarise.

14 The first was Mr Fabian Passarelli. He was the appellant's neighbour. He heard shouting coming from the appellant's home late at night, about two weeks before the morning of Ms Chapple's death.

15 On that morning, Mr Passarelli arrived home at about 4am. He went to bed about 15 minutes later. However, before he fell asleep, he heard a woman screaming from the house next door. He also heard the sound of footsteps, doors slamming, and what sounded like pots being dropped onto the floor. He twice heard the woman shout 'get out'. He also heard a man's voice, but could not make out what was being said. What sounded like a fight continued for about half an hour before Mr Passarelli managed to fall asleep.

16 The second key witness was Mr Ricky Ford, another neighbour. He had known the deceased for some time as she was living next door when he moved to the area. He later met the appellant.

17 Mr Ford recalled a major argument between the appellant and the deceased. On that occasion, he heard a lot of yelling and saw the deceased running out of the house. The implication was that relations between her and the appellant were so bad that she had fled the premises. He added that he heard yelling and screaming coming from the house about every three weeks.

18 Mr Ford was awakened at about 6:30am on 1 September 2006 by someone banging on his front door and calling out his name. When he reached the door he saw the appellant walking away, visibly distressed, heading in the direction of the home of another neighbour. About five or 10 minutes later, the appellant came back to his front door. He described the appellant as having been in such a state that he 'almost couldn't hold himself up'.

19 Mr Ford said that he was alarmed by the appellant's appearance. He noted that the appellant appeared drunk, and that he had his t-shirt, which was bloodstained, on backwards. The appellant asked him for help and said: 'my family has been killed, I've killed my family'. Mr Ford then rang the police.

20 Another key witness, Sergeant Adam Betson, was on duty with the Police Communications Division. He took part in a telephone conversation with the appellant when the appellant first rang the police. A tape recording of that conversation was played to the jury. In it, the appellant was heard to say that his family was dead. He said that Ms Chapple had cut her own throat, and claimed that it was an accident. He subsequently said that she had been stabbed (without, on that occasion, repeating the suggestion that it had been an accident). He also threatened to take his own life, and said that he would burn down the house.

21 The only other evidence of any present significance was the record of interview. The appellant told police that in the period leading up to Ms Chapple's death she had been drinking heavily. He said that he could tell something was wrong. He said that he remained in the bedroom while she went out into the kitchen. He heard something smash, and got up to see what was happening. He saw her holding at least one, and possibly two knives. She said something about having lie detectors put on various members of her family. She added that she could no longer handle the situation.

22 The appellant told police that he tried, unsuccessfully, to disarm her. He said that she then 'started stabbin' herself'. He said that he had 'freaked out', and once again tried to seize the knife from her. However, she had managed to stab herself again. At that stage, he ran out of the house seeking help.

23 Later, in the course of the record of interview, the appellant essentially repeated that account of what had occurred on the morning in question. He also told police that Ms Chapple had once previously attempted suicide, because of problems she had had with her half-sister's father.

24 As previously indicated, the Crown relied upon various lies the appellant allegedly told the police, as well as other forms of post-offence conduct, all of which were said to evince consciousness of guilt.

25 In his directions to the jury, the trial judge dealt with the issue of lies, and the issue of post-offence conduct generally, in the following way. He distinguished between the appellant's account of the manner in which the deceased met her death, and other lies such as his statement to police that he had no idea that his partner was dead. The former his Honour termed 'the big lie', an expression which I will adopt.

26 The post-offence conduct included the appellant's delay in contacting the police (a period of anything up to two hours), as well as his threats to kill himself and his requests to the police for them to kill him.

27 All these alleged lies, and all of the post-offence conduct upon which the Crown relied, were the subject of a detailed and, with respect, unimpeachable, Edwards direction.[1] There is now no challenge to their having been left to the jury as possible evidence of consciousness of guilt (leave to appeal having been refused on that ground), and no challenge to the adequacy of his Honour's Edwards direction.

28 The trial judge's charge to the jury regarding the 'big lie' took a somewhat different form. He limited the use that could be made of any finding that the appellant had told 'the big lie' in the following way:

The second lie, if you find it to be a lie, can only go to the question of

intention, that is if you were satisfied by the material it was the accused who stabbed the deceased, you could use the lie that he said it was the deceased who stabbed herself; if you found that to be a lie, to conclude that he did so when he stabbed her intentionally. Whether it was murderous intent or only sufficient intent to be guilty of manslaughter is a matter for you on the whole of the material that you will have. [2]

29 His Honour repeated that direction at a later stage when he summarised the Crown case.[3]

And that if you looked at the whole of the circumstances, if you looked at the reality of her life as it then was and you looked at the evidence of relationship and all of the other evidence, the likelihood of this young woman at this time in her life committing suicide, particularly so proximate to her two young children in the house in these circumstances, accompanied by the words that are heard by Mr Passarelli, "Get out, get out" that you would not come to the conclusion that this was possibly a suicide and you would be satisfied beyond reasonable doubt that it was not. In those circumstances the accused man had told the additional lie, and that is the lie about Ms Chapple committing suicide, and if you were satisfied that that was a lie, the only explanation for it would be as an implied admission of guilt of the crime of murder.

30 In other words, his Honour told the jury that they could use the 'big lie', if they were minded to do so, but only for the purpose of determining whether the Crown had established murderous intent. They could not use that lie, assuming it was found to be such, for the more basic purpose of establishing that the appellant had killed his partner. That fact had to be proved on the basis of other evidence, excluding entirely any finding that might be made about the lie.

31 The appellant submitted that the trial judge's directions to the jury regarding the use that they could make of the 'big lie' were erroneous. That was because his Honour's charge left open the possibility that the jury would rely upon a lie consisting of a 'bald denial of guilt' in order to find the appellant guilty of murder. It was submitted that, as a matter of law, this could not be done.

32 The appellant relied upon the following passage from the joint judgment of Crockett and O'Bryan JJ in R v Gionfriddo[4] where their Honours said

... a lie consisting of a bald denial of guilt made in or out of court (as is we suppose the case in every contested trial) which is only shown to be a lie by proof by the prosecution of the crime charged axiomatically is not a lie that can assist in proof of guilt. For it to do so would be for the prosecution to lift itself by its own bootstraps.

33 The appellant submitted that his Honour's direction to the jury that they could not use 'the big lie' to prove that he had stabbed the deceased was not an effective response to the risk of circular reasoning. Having found that the appellant lied to police when he told them in detail how his partner had taken her own life, there was a danger that they would use that lie, impermissibly, to conclude that he must have told it because he was conscious of the fact that he was responsible for her death. Yet, that was the very question that had to be determined.

34 It was further submitted that his Honour's direction did not adequately warn the jury of the need for care in deciding whether the alleged lie could be used in support of the inference that the appellant had the requisite intent for murder. Such a lie, it was submitted, would be equally consistent with the appellant's realisation that he was in serious trouble for having stabbed his partner, albeit having done so without murderous intent.

35 The Crown submitted that the trial judge did not err when he directed the jury as to the use they might make of 'the big lie' in the terms set out earlier. It should be assumed that the jury both understood and obeyed his Honour's instruction to them as to the limited use that could be made of that lie, and that there was therefore no danger of any 'bootstraps' reasoning. There was ample evidence to support the Crown case that the appellant had stabbed the deceased, and to make it perfectly clear that this was not a case of suicide. Moreover, the jury had been clearly instructed as to the difference between murder and manslaughter, and were entitled to treat the 'big lie' as evincing a consciousness of guilt in relation to murderous intent.

36 In order to consider properly whether either version of the ground of appeal presently before this Court can be sustained, it is necessary to have regard not merely to the terms of his Honour's direction regarding lies, or the 'big lie' in particular, but also to the context in which such directions were given.

37 It should be noted that at the conclusion of all of the evidence, and immediately prior to the delivery of final addresses, the trial judge outlined the broad compass of the case to the jury in the following terms:[5]

But in this case there are really two matters that are now at the centre of it. The first is, are you on the whole of the evidence satisfied that the accused stabbed the deceased. If you are not so satisfied, then that would be the end of the matter. ...

If you are then satisfied that the accused caused the death of the deceased you must then consider the question of intent. The accused can only be guilty of murder if he intended to kill the deceased or to cause her really serious injury. Considering the question of intent, you are obliged to have regard to all the circumstances of the case ...

You will remember that the first and primary matter in this case is the question, "did the accused man kill the deceased?"

...

So that is what you will be faced with at the end of the day. Did the accused kill the deceased? If he did, what was his intention? If his intention was to kill or cause really serious injury, murder, if not, you then go on to consider manslaughter in the way I have just described it to you.

38 Counsel who appeared at trial took no exception to this formulation of the case. That was hardly surprising, since his Honour's analysis of the issues in dispute was obviously correct.

39 The same directions were repeated in the course of his Honour's charge. The jury were told, once again, in the clearest possible terms, that the 'principal issue' in the trial related to the manner in which the deceased had met her death. They were reminded that the Crown case was that the appellant had stabbed her to the chest. They were further reminded that the defence case was that they could not be satisfied beyond reasonable doubt that she had not taken her own life.

40 As I have indicated, the Crown submitted that there was ample evidence, apart from lies and other post-offence conduct, to support its case that the appellant was responsible for the death of the deceased. I have already summarised some of that evidence, consisting of various admissions made to neighbours and to police.

41 In addition, there was a body of evidence pointing to a history of violence between the appellant and his partner. Then there was the evidence of Mr Passerelli regarding the screaming that he had heard in the early hours of the morning in question.

42 Finally, Dr Malcolm Dodd, a forensic pathologist, gave evidence to the effect that the fatal wound was 'tangential' in nature, requiring a 'severe to moderate' degree of force. He said that although it was not 'physically impossible' for the fatal wound to have been self-inflicted, it was his experience that self-inflicted stab wounds are 'almost always ... at right angles or perpendicular' rather than tangential.

43 With regard to that evidence, the trial judge commented, as he was plainly entitled to do, upon the implausibility of the appellant's account. He said to the jury:

It does raise the question, if this is a matter of suicide, given the great difficulty that would be involved in entering the heart by stabbing yourself in that part of the body, the upper left chest, it does raise the question, and again it is a comment from me, but it raises the question of why, if what you wanted to do was to kill yourself, why you would stab yourself in that position on your body as against either the slitting of the wrists, the cutting of your throat, or any other kind of stab wound that was directly directed at the chest. [6]

44 Two further points may be made at this stage. First, the question of 'consciousness of guilt', and the directions that should be given regarding that matter, were discussed with counsel in considerable detail before his Honour delivered his charge. Secondly, it should be understood that, on a fair reading of that charge, consciousness of guilt did not appear to have been elevated to a central plank of the Crown case. Rather, it was treated by his Honour as 'just one piece of evidence'[7] available to the jury for their consideration.

It is a fundamental tenet of our criminal justice system that jurors decide cases according to their oaths, and that they obey instructions that trial judges give them.

46 I referred to observations of McHugh J to that effect in Gilbert v The Queen[9] where his Honour said:

Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.

47 The appellant's submissions depend for their validity upon a negation of this assumption. Where the jury have been told in clear and unmistakeable language that they are not permitted to have regard to a particular item of evidence when considering whether the Crown have established a specific element of an offence, it should be accepted, in the absence of any indication to the contrary, that the jury did precisely what they were told they should do. There is nothing to suggest that the jury disregarded his Honour's instruction to them that they were to resolve the question whether the appellant stabbed the deceased, or whether she took her own life, on the basis of the evidence as a whole, but not including the 'big lie'. There was ample evidence to support a finding that the appellant had killed the deceased. Indeed, any other finding would almost have seemed fanciful.

48 In these circumstances, I would be loath to conclude that the limiting direction given by his Honour did not have its desired effect.

49 That leaves for consideration the question whether the trial judge was justified in allowing the jury to have regard to 'the big lie' when considering the issue of murderous intent.

50 At one time, it might have been suggested that a lie of this kind should be viewed as 'intractably neutral', in the sense that it would be consistent with consciousness of guilt as to either murder, or manslaughter.[10] In such circumstances, it would not be open to the jury to treat the lie as pointing towards a consciousness of guilt of the more serious offence.

51 That was the position taken by this Court in R v Heyes.[11] In that case, the accused was charged with murder. The Crown relied upon certain lies that he told as evidence of consciousness of guilt. Buchanan JA, with whom Vincent JA agreed, held that where the issue was whether the accused acted with murderous intent, or merely performed an unlawful and dangerous act, evidence of lies would usually be of no assistance to the jury in helping to resolve that issue.[12] That was because there was an explanation for the lies that was consistent with the conduct of a person innocent of murder, an explanation that, without more, could not be rejected. The accused may have lied because the accused was conscious of his or her guilt of performing an unlawful act which caused death. The jury would be speculating if they embarked upon the task of determining precisely why the lies were told.

52 In R v Ciantar,[13] a specially-constituted court of five rejected in part the reasoning in Heyes. It concluded that Heyes was wrongly decided insofar as it suggested that evidence of post-offence conduct could not, in general, be used to prove that an accused was guilty of the particular offence charged as distinct from a lesser offence that either had been, or could have been, charged.

53 The question before the Court in Ciantar concerned the use that could properly be made of the appellant's flight from the scene of a motor vehicle collision. The appellant had been convicted after trial of one count of culpable driving causing death. No lesser offences were charged. However, the Court of Appeal acknowledged that the appellant's driving may also have given rise to various less serious offences, including dangerous driving, careless driving or failing to render assistance.

54 In Ciantar, the appellant contended, in reliance upon Heyes, that the trial judge had erred by failing to make clear to the jury that they could only use the evidence of flight as consciousness of guilt if they were satisfied that the appellant left the scene because of a realisation on his part that he had committed the crime charged, as opposed to a realisation of having engaged in some lesser form of criminality.

55 The Court in Ciantar commenced its analysis of the issue by noting that, prior to Heyes, it was assumed that there was no difficulty in leaving consciousness of guilt to the jury as capable of demonstrating guilt of the more serious of several possible charges without making distinctions of the kind urged by the appellant. It cited the following passage from the judgment of the Victorian Court of Criminal Appeal in R v Woolley:

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. 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 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.

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.[14]

56 It was noted in Ciantar that this passage was at odds with the conclusion in Heyes that post-offence conduct could not be used to determine whether the accused had the necessary mens rea for murder at the time he killed the deceased.

57 The Court in Ciantar then noted that the decision in Heyes had been influenced by reference to Canadian authority.[15] It was observed that the Canadian cases were predicated upon the notion that lies and post-offence conduct are 'incapable of evidencing consciousness of guilt of a specific offence if they are reasonably susceptible of another possible explanation'.[16] In Ciantar, the Court observed that, in that respect, the Canadian position was materially different from the law applicable in this State. The Court said that:

[The Canadian cases do] not accurately reflect the law in this country. Lies and post-offence conduct are a species of circumstantial evidence. An inference of guilt may be drawn from the concatenation of circumstances including the post-offence conduct. The process of reasoning from 'strands in a cable' of circumstantial evidence discussed in Shepherd v R was applied in Edwards v R. Whether a statement proved to be false is capable of demonstrating a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend upon 'the terms of the statement, the circumstances in which it is made, the nature of the offence charged and the other evidence in the case'.

As with other forms of circumstantial evidence of guilt, a jury may accept evidence of lies and other post-offence conduct and act upon it without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is to say, without being satisfied that there is no other explanation of the lies and post-offence conduct which is reasonably open on the facts).[17]

58 In short, Ciantar held that Heyes had overstated the position. The Court said that:

We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so.[18]

59 The conclusion in Ciantar is strengthened by the fact that the Canadian Supreme Court recently appears to have qualified somewhat the approach it had earlier taken in R v Arcangioli, the case on which the reasoning in Heyes in part relied.

60 In R v White, Rothstein J (for LeBel, Abella, Rothstein and Cromwell JJ) said:

Mr. White sought to have this Court accept that Arcangioli and its successor cases, such as White (1998), stand for the very broad proposition that 'post-offence conduct is generally inadmissible in determining whether an accused is guilty of manslaughter or murder'. Arcangioli did not have - nor was it intended to have - so far-reaching an effect. According to Arcangioli and White (1998), the inquiry is fact-specific and a 'no probative value' instruction is warranted when the evidence of post-offence conduct is 'equally consistent with' or 'equally explained by' either determination of the live issue in question (here, with a finding of murder or manslaughter); that is, when the evidence is not probative of that live issue, on the facts of the case.[19]

61 In Butler v The Queen,[20] this Court once again considered what use could be made of post-offence conduct in circumstances where the offence in question might have been either murder or manslaughter. In that case, the applicant had been convicted of murder. The victim had occupied a house owned by the applicant's mother. It had been arranged that he would pay the rent owing directly to the applicant. However, the victim had simply and suddenly disappeared. The Crown case was run on the basis that the victim had been murdered by the applicant who then dismembered, incinerated and disposed of his body.

62 In order to prove murderous intent, the Crown relied upon a body of evidence that was circumstantial in nature. First, there had been a fight over unpaid rent. Secondly, it was said that the applicant had told lies to the police in his record of interview. Thirdly, the Crown pointed to certain post-offence conduct that was said to indicate that the applicant had been involved in the disposal of a body.

63 It was argued, on the appeal, that the trial judge had erred in permitting the jury to have regard to the post-offence conduct, and the supposed lies, in determining whether there had been murderous intent. In other words, the evidence was said to be 'intractably neutral', at least as to whether murder or manslaughter had been committed.

64 Ashley JA (with whom Maxwell P (on this point) and Ross AJA agreed), observed that the question whether post-offence conduct can constitute proof of a murderous intent is overwhelmingly one of context. In that case, however, there was only the barest relevant factual context. Nevertheless, his Honour was able to conclude:

I have grave doubt whether the evidence was other than intractably neutral. It is notable, I interpolate, that at no stage did the prosecutor argue that an inference of murderous intention could be the more readily reached because the applicant had not given viva voce evidence. Nor did the prosecutor ask the judge to give a direction to that effect. But in the end I agree with the judge's conclusion. I consider that the alleged post-offence conduct and lies were in combination capable of sustaining an inference that the applicant killed T with murderous intent, and that such conduct and lies, when the jury came to determine intention, were not necessarily equally consistent with a killing amounting to murder or manslaughter. That is so despite the absence of other evidence which could assist to such conclusions.[21]

65 Although Ashley JA accepted that the post-offence conduct and lies were, in combination, capable of sustaining the inference for which the Crown contended, namely that the applicant had murdered the deceased, he concluded that the verdict in that case was unsafe and unsatisfactory. Ross AJA agreed. Maxwell P dissented.

66 As Ashley JA noted in Butler, it is important to have regard to the 'significance of other evidence which establishes a context for considering the inferences which are available from post-offence conduct'.[22] His Honour's judgment represents a carefully balanced analysis of the way in which Ciantar can be applied, but, at the same time, treated with appropriate caution.

67 The approach taken in Butler is consistent with authority. In Hillier v The Queen, the High Court set out how an appellate court should proceed when considering whether a verdict, based exclusively upon circumstantial evidence, was unsafe or unsatisfactory. The Court said:

Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.[23]

68 Post-offence conduct is, of course, nothing more than a species of circumstantial evidence.

69 Returning to the facts of the present case, the 'big lie' must be 'considered in the context of all of the evidence'.[24] When viewed merely as one item of evidence amongst several which might have been used as the basis of an inference of murderous intent, it cannot be said that the 'big lie' was intractably neutral. It had to be considered in the context of other evidence including the severity of the wound inflicted, the relationship evidence, and the appellant's statements to his neighbours and police immediately following Ms Chapple's death. Having regard to the 'whole of the material', as the jury were instructed to do by the trial judge, the 'big lie' was significantly more probative of murderous intent than of some lesser intent.

70 It is true that his Honour did not specifically warn the jury of the need for care

in deciding whether the 'big lie' was an implied admission to murder as opposed to manslaughter. However, he did give a full and accurate direction regarding the way in which they were to approach inferences, in what was, in large measure, a circumstantial case. In the particular circumstances of this case, that was sufficient. There is nothing to suggest, by contrast with Butler, that this verdict was unsafe or unsatisfactory. Indeed, it is noteworthy that the appellant has not sought to invoke any such ground. There was no miscarriage of justice.

71 That conclusion is strengthened by the fact that murderous intent was not seriously raised as a live issue at trial. As counsel for the appellant acknowledged at the hearing of the appeal, the substance of the defence closing address was that the accused had not stabbed the deceased. Trial counsel made a forensic decision to run the case in that way, rather than to raise the issue of intent as an alternative matter for the jury's consideration. That was a choice that was open to him.

72 For these reasons, the appeal should be dismissed.

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

[4] (1989) 50 A Crim R 327, 332-3.

[8] (2009) 28 VR 380, 434.

[10] R v Heyes [2006] VSCA 86; (2006) 12 VR 401 ('Heyes').

[13] [2006] VSCA 263; (2006) 16 VR 26 ('Ciantar').

[14] (1989) 42 A Crim R 418, 423-4 (Murphy, Marks and Gobbo JJ) (emphasis added). See also R v Rice [1996] 2 VR 406.

[15] Arcangioli v The Queen [1994] 1 SCR 129, 145.

[16] [2006] VSCA 263; (2006) 16 VR 26, 39 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).

[18] [2006] VSCA 263; (2006) 16 VR 26, 39.

[19] [2011] 1 SCR 433, [40]. Deschamps and Charron JJ concurred: at [131].

[20] [2011] VSCA 417 ('Butler'). Special leave to appeal to the High Court from this decision was refused on 17 August 2012.

[21] [2011] VSCA 417, [134].

[23] [2007] HCA 13; (2007) 228 CLR 618, 639 (Gummow, Hayne and Crennan JJ).

[24] Ciantar [2006] VSCA 263; (2006) 16 VR 26, 39. See also R v Gojanovic (No 2) [2007] VSCA 153, [36]-[37] (Ashley and Kellam JJA, Kaye AJA).