Butler v The Queen [2011] VSCA 417

2 I have, however, come to a different conclusion on ground 2. That ground should also be dismissed, in my opinion. I consider that it was open to the jury, on all of the evidence, to be satisfied beyond reasonable doubt that the applicant had killed the victim (T) with the intent, at the least, of causing him very serious injury. I would therefore dismiss the appeal. My reasons are as follows.

3 Under this ground, the applicant contends that his conviction for murder is unsafe and unsatisfactory. This Court must therefore ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[1] The 'unsafe and unsatisfactory' ground will only be upheld if there was some aspect of the evidence which obliged - as distinct from entitled - the jury to come to a different conclusion.

4 In Libke v The Queen,[2] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to this ground:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

In other words, the question posed in M v The Queen,[3] namely,

Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?'

[W]hether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.

The question is whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt'[4] or whether, instead, the 'path to a conviction is open'.[5]

5 The Crown case against the applicant was entirely circumstantial. The prosecutor submitted to the jury that the post-offence conduct was capable of only one reasonable explanation, namely, that the applicant was aware that he had killed T with murderous intent and was seeking to conceal the fact of T's death and avoid responsibility for it. Whether the prosecution had excluded every reasonable hypothesis consistent with the applicant's innocence was a question of fact for the jury.[6] Accordingly, for the unsafe ground to succeed, the applicant had to establish that the jury were bound to conclude that there was an alternative explanation of the conduct available, consistent with the applicant's innocence of the charge of murder.[7] It would not be enough that they might have come to that conclusion.

6 According to the appeal submission, there was one alternative hypothesis which the jury could not reasonably have excluded, namely, that the applicant had engaged in the post-offence conduct because he was conscious of his guilt of the lesser offence of manslaughter. That is, the applicant's conduct was said to have been consistent with his being conscious of having caused T's death by an unlawful and dangerous act - for example, by punching him to the head - without an intention either to kill T or cause him really serious injury.

7 No such case was put to the jury. Instead, the defence case was that the applicant had had nothing at all to do with the disappearance of T. Defence counsel (who did not appear on the appeal) made clear to the jury, both in opening and in closing addresses, that 'the primary issue from the defence point of view is the evidence of Ms Harris'. The defence case was that Ms Harris was 'a dishonest and unreliable witness, a liar of the very worst sort'.

8 Defence counsel told the jury that, even if they accepted Ms Harris's evidence, there were 'serious issues' to deal with, as follows:

• whether T was in fact dead or simply missing;
• if dead, how he had died and who was responsible; and
• the state of mind of whoever had performed the act(s) causing the death.

9 Defence counsel maintained in his closing address that there was a live question whether T was 'in fact deceased or not'. The defence case was put to the jury on the basis of a cascading series of alternative hypotheses, each of which the jury was invited to consider, as follows:

• T might not have died but might simply have disappeared;
• even if he had died, the applicant might not have had anything to do with his death; and
• even if the applicant had caused or contributed to T's death, it might have been an entirely accidental death.

10 By contrast with the position on the appeal, defence counsel did not ask the jury to consider the further possibility that, even if the applicant had caused the death and even if it was not an accident, his action might have amounted to no more than an unlawful and dangerous act, rendering him liable only for the offence of manslaughter. On the contrary, as appears from the following paragraphs, defence counsel told the jury that there was no evidence to support any hypothesis which attributed criminal responsibility to the applicant for the death of T.

11 Counsel told the jury that, even if they were satisfied that T had died and that the applicant had caused his death, there was no evidence of what the applicant's intention had been at the time. Counsel submitted:

The evidence about what he was thinking at the time these acts are said to have occurred is totally absent. All you have in this case ... is things that occur afterwards which might be consistent with a number of possibilities and the prosecution seek to say ... you should reason that he must have had either a murderous intent or he must have been performing an unlawful act.

12 Defence counsel reminded the jury of the statement, attributed to the applicant by Ms Harris, that there had been a fight between himself and T. Defence counsel said:

[The accused] is not supposed to have said that he started the fight and he is not supposed to have said what the fight actually involved. It is the situation that people do become involved in fights and they are not necessarily acting unlawfully when they do and it is the situation that sometimes things eventuate from those fights. There is nothing in the statements that have been attributed to Mr Butler that indicates that he has started the fight or had a reason to fight even. There is absolutely no evidence ... as to what his state of mind was at the time.

It is the situation that what he [is] supposed to have said clearly raises the possibility there was an accident that occurred and that's one of the issues that you have to deal with in your deliberations. As I say, this is accepting the evidence of Jodi Harris.

Because what she says, there was a fight, he ended up unconscious, and by implication, it seems some time after that, he was dead. I should say to you that it's well known, it's a matter that's known to everyone, that people do die as a consequence of various things; people hit their heads or whatever. In this case you'd [need to] be satisfied that there is some basis for saying that if there was a fight, somehow [the accused] had some unlawful intention at the time, or had some murderous intention at the time, as has been described, and I suggest to you that there's an absolute lack of evidence to form any conclusions along those lines.

13 The respective cases were clearly conveyed to the jury in the judge's charge, as follows:

What is said in relation to the doing of these acts by the Crown is that the evidence of Jodi Harris is evidence from which you can draw the inference and therefore find as a fact that the body of [T] was dismembered in some way, put in a bag, placed in the bath and ultimately over a period of time, that body was burnt to ashes and fragments of bone. If you find that as a fact from her evidence the Crown says then there can be no other explanation for behaviour of that type, than a clear and obvious awareness of the accused's own guilt of the murder of [T]. No person would be involved in such behaviour for any other reasons.

The defence say to you that there was no dismembering or burning of the body of [T] by the accused man. They say it is a figment of Jodi Harris' imagination and that there is absolutely nothing that supports what she says in relation to this matter. This, they say, just never happened.

14 In directing the jury as to the element of intent, her Honour said:

The Crown say that these are such extreme actions, such callous and outrageous acts that they will assist you in drawing the inference that the accused man had the intent to either kill or cause really serious injury to [T].

The Crown relies upon that behaviour as being totally inconsistent with this being an accidental type killing or even a manslaughter which requires only that it be an unlawful and dangerous act such as fighting might constitute but lacking any intent to kill or cause really serious injury to the accused.

15 Her Honour here pointed out, quite correctly, that the Crown case depended upon the jury being satisfied that the post-offence conduct was 'totally inconsistent' with the 'unlawful and dangerous act' hypothesis, notwithstanding that the defence had not articulated a proposition in those terms.[8] Her Honour reinforced the point when she said:

What an individual's intention was may be deduced by you. That is, inferred by you from the facts that you find established. However, before you can draw an inference in relation to this matter, that is the state of mind of the accused in a manner that is adverse to the accused, you must be satisfied beyond reasonable doubt that there is no other reasonable inference open on the evidence other than that the accused intended to cause the death of [T] or intended to cause him really serious injury.

16 Against that background, it is important to appreciate how narrow the case became on appeal. The only alternative which was said to have been impossible for the jury to exclude, once Ms Harris's evidence was accepted, was the 'unlawful and dangerous act' hypothesis. It was accepted that this hypothesis fell to be tested against the facts as established by the evidence of Ms Harris and the other Crown witnesses. The hypothesis must also be considered in the light of the conduct of the defence case at trial, in particular the applicant's failure to give evidence. I deal first with what the Crown case established.

17 As I have said, ground 2 was argued on the assumption that the jury had accepted the evidence given by Ms Harris (and the essentially uncontested evidence of the other Crown witnesses). On that assumption, the jury could be satisfied beyond reasonable doubt of the following matters:

• the applicant had caused the death of T;
• the applicant had dismembered T's body and placed it in a bag;
• when Ms Harris saw the bloody water leaking from the bag, the applicant had lied to her about the contents of the bag, claiming that it was full of fish;
• after Ms Harris had observed the bloodied sheet, and asked whether it contained the remains of T, the applicant - without answering her question - had asked Ms Harris to help him;
• the applicant had then burnt the body in an incinerator;
• with Ms Harris's assistance, the applicant had cleared the ground around the incinerator of any trace of the remains, and had then disposed of the swept-up ashes (which included bone fragments) and also of the incinerator itself;
• soon after the burning of the body, the applicant had driven with Ms Harris from Geelong to Queensland, driving T's car;
• the applicant and Ms Harris had stayed a relatively short time with Mr Patterson in Brisbane, before leaving T's car there and driving back to Victoria in another car;
• the applicant had asked Nicole Donaghy, a friend of T's, if she wanted to keep T's dog, falsely stating to her that T had 'gone away';
• the applicant and Ms Harris had sold furniture belonging to T, the applicant telling Ms Harris that T still owed him money;
• the applicant went to see T's uncle, Neil Grayson, falsely stating that T had 'disappeared' and asking Mr Grayson if he still owed T any money;
• when Michael Goldberg, an acquaintance of T's, subsequently visited the house, the applicant told him - falsely - that T was in Bathurst; and
• shortly before they were arrested in June 2008, the applicant told Ms Harris to lie to police about what she knew, and say 'that the Bathurst weekend was the last weekend we saw him and that he'd driven himself to Bathurst and not to mention anything about the dog or the car'.

18 It also followed from the jury's acceptance of the Crown's evidence that the applicant had lied in his record of interview. As the Crown had submitted, the applicant was lying when he told police that:

• the last time he had seen T was in Geelong, at which time T had said he was going to go to Bathurst and then might go on to Sydney;
• he did not know whether T had taken his car with him. All he knew was that the car 'wasn't at home the following week';
• he did not know what had happened to T's dog, or where the dog had gone; and
• T had told him that the dog was going to some other person's place.

19 When the applicant was asked during the interview whether it had crossed his mind subsequently that T had not returned, he gave the following false answer:

It crossed my mind, people asked, others fucking crapped on about this, that and the other thing, but no, I - I expected - even till recently, that he could rock up. I - for all I knew he could have been in jail. I knew that he was getting back in amongst the hammer a bit. Didn't - no I didn't get concerned, 'cos there wasn't much stuff at my place, anyway, so ...

20 As I have said, the defence case was directed principally at discrediting Ms Harris. A good deal of time in cross-examination was spent taking her through her prior dishonesty convictions, and the point was made at some length in final address that Ms Harris simply could not be believed. She was a 'practised liar'. She had been 'a dishonest person for years'. Defence counsel went so far as to suggest that 'what she's really done is told a story to deflect attention from the true culprits'. In her charge, the judge made what she described as a 'strong' comment, correctly pointing out that there was 'absolutely no evidence' to support such a suggestion, and that no such suggestion had been put to Ms Harris in cross-examination.

21 Almost nothing was said, however, either in cross-examination of Ms Harris or in final address, to suggest that her evidence was inherently implausible, or internally inconsistent, or inconsistent with facts capable of being established independently of her. Defence counsel's only attack on the substance of her evidence came at the very end of the cross-examination, when he put to Ms Harris that it was 'just a story you've made up.'

22 The defence case was thus squarely directed at an acquittal. There was no submission about the availability of manslaughter as an alternative verdict. This was no doubt because, if Ms Harris was not accepted as a truthful witness, there was nothing to connect the applicant with T's death, even assuming that the jury were otherwise satisfied (by the cessation of all activity on T's bank account and telephone and other records after 7 October 2005) that he had died. In approaching the case this way, however, the defence ran the risk that Ms Harris would be believed and that, as a result, the jury would be satisfied of all the affirmative matters listed above, and satisfied that T had told all the lies identified above.

23 That is, of course, exactly what occurred. The case on the appeal was that, the jury having reached that point in their deliberations, it was necessary for them to examine one remaining hypothesis, that being the 'unlawful and dangerous act' hypothesis. Naturally, given the way the defence case had been presented, defence counsel had not made submissions to the jury directed at showing how the post-offence conduct (which the applicant denied) could be reconciled with a consciousness of guilt of manslaughter, rather than of murder. Nor did the jury have a version of events from the applicant which might have given credence to that hypothesis. On the contrary, he had told a series of lies in his record of interview and to other people, to the effect that he knew nothing about what had happened to T, and he had not given evidence in the trial. I now turn to the significance of his failure to give evidence.

24 The Crown submission on the appeal was that the failure of the applicant to give evidence at his trial more readily enabled the jury - and hence this Court - to reject the 'unlawful and dangerous act' hypothesis. In my opinion, this submission should be upheld. As will appear, it is supported by a strong line of authority in this Court and the High Court.

25 In R v Neilan,[9] the Court of Criminal Appeal (Young CJ, Brooking and Marks JJ) dismissed an appeal against a conviction for murder. The applicant had been convicted of the murder of his wife. His defence was that the murder had been committed by unknown intruders who had broken into the family home, assaulted him, placed him in the boot of a family car and then shot his wife. He did not give evidence at his trial. The Court said:

The jury was entitled as are we to consider that the silence of the accused permitted a more ready acceptance of the Crown case.

Moreover, the silence of an accused will be of greater weight where it appears that he alone is able to explain the true facts surrounding a relevant incident.[10]

26 The Court rejected the applicant's submission that, because of his right to silence, his failure to give evidence should be treated for all purposes as irrelevant.[11] The Court affirmed 'the potential relevance of the confirmatory function of silence for the drawing of inferences or acting on evidence which might have been contradicted from an available source with knowledge of the essential facts'. There was a 'wealth of authority' supporting this view, the Court said:

In R v Corrie & Watson Lord Alverstone CJ stated: 'No inference should be drawn in support of a weak case from the fact that the defendants were not called; but when transactions were capable of an innocent explanation, then, if the defendants could have given it, it was not improper, once a prima facie case had been established, for the jury to draw a conclusion from their not being called.'

As Professor Williams (then Lecturer in Law, Monash University) wrote in 'Silence and the Unsworn Statement: An Accused's Alternatives to Giving Sworn Evidence': 'Where a prima facie case exists against the accused it is clear that his silence, whilst not conclusive, may add weight to the case against him.' ...

In Bridge Windeyer J said: 'But the failure of an accused person to contradict on oath evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true. That is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies.'

In Tumahole Bereng v The Queen the Privy Council said: 'It is, of course, correct to say that these circumstances - the failure to give evidence ... may bear against an accused and assist in his conviction if there is not other material sufficient to sustain a verdict against him. But if the other material is sufficient either in its quality or extent they cannot be used as a make-weight.'

In R v Bruce, Gray J with whom the other members of this court agreed said: 'It is well established that the failure of an accused to give evidence at his trial may be used against him, not as an admission but as a fact which may strengthen prosecution evidence or inferences.'[12]

27 The next relevant authority is the early decision of the Court of Appeal in R v Rice,[13] cited by the Crown on the present appeal. In that case, the accused had been charged with the murder of a woman with whom he had been having a sexual relationship. She was not seen alive following a weekend which they had arranged to spend together to patch up differences that had arisen between them. Almost four years later, her body was found in a large drum, filled with lime, in a shed on a farm owned by an acquaintance of the accused. He had left the drum and other belongings with the acquaintance before leaving Australia for the United States. In the period following the deceased's disappearance, the accused had told various lies regarding the deceased's movements and plans.

28 The trial proceeded as a manslaughter trial, after the judge held that the words and conduct relied on by the prosecution would not support a finding of murder, as distinct from a finding that death had been caused by an unlawful and dangerous act. The defendant did not give evidence. The alternative hypothesis advanced on the appeal was that the victim might have died from natural causes. Brooking JA (with whom Charles JA and Southwell AJA agreed) said:

If the woman died from natural causes, or in any other circumstances than those of an unlawful or dangerous act on the part of the applicant, what did he have to fear if her death came to light? Any reasonable person must have realised that, by concealing her body and her death as he did, and telling the lies which he told, he ran a great risk that, if the body was found, he would be charged with murder. Why should a man take such a risk if the explanation of the death was an innocent one?

She must have known when she cast the body into that place that if it ever was discovered, and if the fact came to light that she was the person who had thrown it there, a surmise would arise that she took the course in order to dissemble a homicide and the manner in which it had been effected.[14]

The present case moreover cries out for the application of the principle that in considering whether hypotheses consistent with innocence are rational or reasonable regard may be had to the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.[15] Why should the jury be deterred from rejecting the hypothesis that death from natural causes and any other hypothesis consistent with innocence when the applicant did not, either at any time before the trial or during the trial, say a single word tending to support an innocent explanation of the death?[16]

29 In Weissensteiner,[17] to which Brooking JA referred in Rice, Mason CJ, Deane and Dawson JJ had said:

[I]t has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept the evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism_. It is because doubts about the reliability of witnesses or about the inferences to be drawn by the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give it or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused._

Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof to cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.[18]

30 Weissensteiner was again applied by this Court in R v Cengiz.[19] In that case, the accused was charged with murder. It was alleged that the accused had run over the victim several times with her car, believing him to be still alive. The medical evidence established that the victim had already died by the time this occurred. At the trial, defence counsel had submitted to the jury that they could not exclude the possibility that the victim had died in the accused's presence and that she had then driven over his body, knowing that he was already dead, to make it appear that he had been killed in a car accident and thereby deflect suspicion from herself. The jury convicted her of an alternative count of attempted murder.

In such a situation, where the applicant was the only person present when her brother died, and the only possible source of any explanation of his death, or her own behaviour, her failure to enter the witness box attains particular significance. ...

In the present case, the applicant (and she only) could have been expected to provide an explanation or evidence as to how and when he had died in her presence, and of her own actions at about the time of his death. It is her failure to provide any such explanation, either to the police or in the witness box which in my view causes the suggested hypothesis consistent with her innocence to cease to be rational or reasonable in all the circumstances of the present case.[20]

32 Harper AJA was likewise of the view that, in rejecting the alternative hypothesis, the jury were entitled to take into account the accused's failure to give evidence:

Only she could refute the evidence adduced by the Crown which, in the light of the fate which befell the deceased, was consistent with an intention to kill him. ... The failure of an accused person to contradict on oath evidence that to her knowledge must be true or untrue can logically be regarded as increasing the probability that it is true.[21]

33 In my opinion, the evidence given by Ms Harris and the other Crown witnesses meant that this was a case which called for 'explanation or contradiction in the form of evidence from the accused'. That was the criterion as formulated in Weissensteiner, and it was reaffirmed in R P S v The Queen[22] and again in Azzopardi v The Queen.[23]

34 On Ms Harris's account, the facts relevant to T's death were wholly within the applicant's knowledge. Even if Ms Harris was not believed, there were a number of matters, established by other evidence or referred to by the applicant in his record of interview, which required explanation. The position was similar to that described by Brennan and Toohey JJ in Weissensteiner.[24] What needed explaining, but was left unexplained, was the applicant's possession of T's car after having (on his account) been told by T that he was going to Bathurst; his making of a quick return trip to Brisbane, apparently for the sole purpose of leaving T's car there; and his disposal of T's dog to Ms Donaghy.

35 The particular significance of what was said in Weissensteiner, as applied in Rice[25] and in Cengiz,[26] is that the failure of an accused to give evidence in a circumstantial case such as this means that hypotheses consistent with innocence 'may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.' That this was the key proposition in Weissensteiner has been confirmed by the subsequent High Court decisions.[27] The principle has been repeatedly applied by this Court when dealing with the unsafe ground.[28]

36 To adopt the language of Brooking JA in Rice, the present case 'cries out for the application of [that] principle'[29]. As I have said, the alternative hypothesis propounded on the appeal accepted that the jury could have been satisfied that the applicant had not only killed T but had done so in circumstances which, the applicant believed, exposed him to liability for manslaughter but not for murder. If there was evidence to support that version of events, then the evidence, if it existed at all, must have been within the applicant's sole knowledge. He chose not to give evidence, however, maintaining instead a case which did not even concede that T's death had been established.

37 In my view, the consequence of the applicant's failure to give evidence in these circumstances was that the 'unlawful and dangerous act' hypothesis, even if otherwise rational or reasonable, ceased to be so.

[T]his Court would only interfere with the jury's verdict if it could be shown that the alternative hypothesis was so patently reasonable that no jury properly instructed could rationally exclude it. Otherwise it must be for the jury, as the body entrusted with determining questions of fact, to resolve that question.[30]

Having considered for himself whether the alternative hypothesis relied on in that case could be viewed as rational in the circumstances, Ormiston JA said:

Nevertheless, in my opinion, it is not for this Court to resolve an issue such as that which I have been discussing. Whether it was or was not an unreasonable or fanciful hypothesis to put forward must in this case have been for the jury to resolve. They are the body which under our law are entrusted with that decision and it is their experience of life and their collective knowledge and wisdom which must resolve the issues so posed. As was said in Knight[31] this court is 'required to act upon that view of the facts which the jury were entitled to take having seen and heard the witness'. It is only where it does not appear to the Court 'to be possible to exclude, as not being reasonably open on the evidence, the hypothesis or inference' in question that this court can interfere.[32]

39 In Cengiz, both Ormiston and Harper JJA quoted the following passage from the decision of the High Court in Doney v The Queen,[33] itself a case about the available hypotheses in a circumstantial evidence case:

[T]he purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference of its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.[34]

40 The issue in the present case was, quintessentially, an issue of that kind. That is, it was for the members of the jury to draw upon their 'collective experience of ordinary affairs' in deciding whether they were persuaded - beyond reasonable doubt - by the 'extreme conduct' case which the prosecution were advancing. It is apparent from the verdict that they were and that they rejected all of the various alternative possibilities which the defence had put forward.

41 Both counsel invited the members of the jury to draw on their own experience in deciding what conclusion should be drawn from the evidence. I have already set out the passage from defence counsel's final address in which he urged the jury to draw on their own knowledge of causes of death.[35] The prosecutor's final address likewise invited the jury to draw on their experience of human behaviour. Drawing particular attention to the dismemberment, burning and disposal of T's body, the prosecutor submitted:

When you think about that piece of post-offence conduct, it's extreme, in my submission to you. If there was some sort of accident that had occurred you'd ring the police, you'd ring an ambulance, you don't go an chop up a body and then burn it and dispose of it. It is extreme behaviour and you can use that behaviour to infer, to draw the inference, that Lawrence Butler had the necessary murderous intent.

Murderous intent, there are two parts to it. You can commit murder either by intending to kill somebody or by intending to cause that person really serious injury. It's not just the actual intention to kill. If you assault somebody intending to cause them really serious injury then the law says that's murder. What the prosecution says is that when you look at that behaviour you can be satisfied that Lawrence Butler had the necessary murderous intent because it's so extreme and so inconsistent with anything else, with any sort of accident occurring.

Now obviously to get to that stage, you have to accept the evidence of Jodi Harris that the body of [T] was in the bags, that it was cut up, that it was put in the drums and that it was disposed of in the fashion that she describes ...

Later, the prosecutor said that the 'act of cutting up and disposing of the body was out of all proportion to any accident and indicated a murderous intent.'

42 There is, no doubt, room for reasonable differences of opinion about whether the applicant's post-offence conduct was capable of being explained by the 'unlawful and dangerous act' hypothesis. For my own part, I consider that the conduct was correctly described by the prosecutor as 'extreme' and as 'out of all proportion' to the postulated circumstance, of the applicant having caused T's death but without murderous intent.[36] I consider that the alternative hypothesis could, therefore, be rejected altogether. I reach that conclusion independently of the fact that the applicant gave no evidence to support the alternative hypothesis but, for the reasons I have given, that failure reinforces my conclusion. Ashley JA has, however, come to a different conclusion.[37]

43 As stated earlier, it is not sufficient for the applicant to show that the jury might have viewed the post-offence conduct as consistent with manslaughter. He had to persuade this Court that they were bound to come to that conclusion. As Ormiston JA said in Cengiz, whether the alternative hypothesis was reasonable or fanciful was for the jury to resolve. For the reasons I have given, I consider that it was well open to them to reject that hypothesis as unreasonable.

44 I need to deal finally with the applicant's reliance on the 'grave concerns' expressed by the trial judge about the evidence of post-offence conduct. It is important to read her Honour's ruling as a whole. Although expressing the view that the evidence was close to being 'intractably neutral', her Honour appears to have accepted that, if Ms Harris was believed, the jury would be entitled to prefer the Crown's hypothesis. So much appears from the highlighted passage in the ruling:

In most cases there are, there is a lot of other material upon which a jury can, in fact, in combination, rely. Here, the only evidence the jury can use or is capable of being used to determine the issue of intent, is the drawing of inferences from post-event conduct because that is what they have to do in respect of post-event conduct.

This material is close to being what is described by the Court of Appeal in Ciantar[38] as intractably neutral but it depends, to a large degree, whether they accept what Ms Harris, the major Crown witness, says.

If they accept that the accused man dismembered and burnt the body of [T], they may well be able to infer that such conduct was indicative of a callous and deliberate murder and not at all consistent with panic or other matter that may relate to manslaughter.

Accordingly, although I have grave concerns about it, I intend to follow what Ciantar says and allow the jury to make the determination.

45 Her Honour evidently considered that, if the jury accepted Ms Harris's account of the dismemberment and burning of T's body, they would be entitled to conclude that the applicant's conduct was 'not at all consistent' with manslaughter.

46 In October 2009, the applicant, Lawrence Butler, was found guilty in the Supreme Court of the murder of Trevor Tascas at Whittington between 5 and 12 October 2005. On 15 December 2009, he was sentenced to 23 years' imprisonment. The judge fixed a non-parole period of 20 years.

47 Now the applicant seeks leave to appeal against conviction. He relies upon the following grounds:

1. The learned trial judge erred in permitting the count of murder to be left to the jury, leading to a substantial miscarriage of justice:

(i) the learned trial judge erred in ruling that post event conduct and lies could go to the issue of murder;

(ii) the learned judge erred in determining that there was evidence that could go proving that the applicant had the necessary murderous intent when there was no other evidence;

(iii) the learned judge erred in leaving the post event conduct when it was intractably neutral on the question of murderous intent.

1. That the verdict of the jury in the circumstances of this case is incapable of being supported by the evidence.

48 The following matters are not in dispute. In October 2005, Tascas ('T') was 27 years of age. The applicant was then aged 41.

49 For some time until about August 2005, T had been living in a mortgaged premises at Norlane which were owned by an uncle. T had agreed to make repayments, and the uncle had undertaken that when all payments had been made,

he would transfer the property to T. But T had lost his job, his relationship with a girlfriend had ended, and he had ceased making repayments. The uncle had experienced difficulty in getting T to vacate the premises, but eventually he agreed to pay T $28,000 in return for the latter vacating.

50 Between August and October 2005, the uncle made certain payments. T used a payment of $10,000 to buy a Calais motor vehicle.

51 Having vacated the Norlane property, T moved into a home at Thatcher Court, Whittington which was owned by the applicant's mother, but which was occupied by the applicant. T and the applicant were acquainted.

52 T took with him a dog - a Jack Russell cross - to which he was much attached.

54 In October 2005, T disappeared. He has not been seen or heard of thereafter.

55 No explanation appeared why T might simply have chosen to disappear.

56 In my opinion, for reasons discussed below, the jury was well-entitled to infer - although it was hotly disputed at trial - that T died in October 2005. It appears to me that the questions which particularly arose for decision were whether the Crown had proved that T died at the applicant's hands; and, if so, whether it had proved that the applicant had killed T with murderous intent.

57 The Crown relied upon the evidence of a woman named Jodi Harris to establish - essentially by inferential reasoning - that the applicant had killed T, and that he had thereafter disposed of the body by dismembering it, burning it, and later disposing of the remnants and the barrel in which the fire had been set. Later, I will refer to that evidence in some detail.

58 The Crown relied upon the manner in which the applicant had allegedly disposed of the body, and upon what were alleged to have been four lies told by him in consciousness of guilt in a police interview conducted in July 2008, as a basis for the jury inferring that the applicant had killed T with murderous intent. The prosecutor denied, the trial judge having raised the issue, that those circumstances (assuming the jury found them to be established) were 'intractably neutral' upon the question whether the presumed killing was murder rather than manslaughter.

59 The judge ruled that the Crown could go to the jury upon the particular evidence in proof of the murder count.

60 The judge charged the jury in accordance with R v Ciantar[39] and Edwards v The Queen.[40] No complaint is made with respect to the form of the charge. The complaint made by Ground 1 is that the judge was wrong to have ruled that the evidence permitted an inference of murderous intent to be drawn; and wrong to have so directed the jury.

61 The evidence given by Jodi Harris was pivotal. Without it, there was no case against the applicant.

62 Three matters should be mentioned at the outset concerning the witness.

63 First, Harris had prior criminal convictions for dishonesty. The judge appropriately directed the jury in that connection.

64 Second, Harris admitted that she had assisted the applicant in removing some of what remained after what she said was the fire set by the applicant. Before the applicant was tried, she had pleaded guilty, I use the old language, to being an accessory after the fact to manslaughter, and to two counts of dishonesty. The latter related to the making of withdrawals from T's bank account in 2006. She had been sentenced to a total of 3 years' imprisonment suspended for 3 years. She had been so sentenced after undertaking to give evidence against the applicant. She had been given a much reduced sentence on that account.

65 The judge gave a strong accomplice direction. It is not the subject of any complaint. Her Honour further identified evidence which was capable of corroborating Harris' evidence. No complaint is made in that connection.

66 Third, it was argued for the applicant that Harris had a motive for giving, as the applicant contended it was, untruthful evidence. In fact, several motives were suggested. One of them was first advanced in counsel's final address, and the judge gave an appropriate direction in that connection.

67 Harris gave evidence as follows: She met T as a friend of the applicant. She helped him to move into the Thatcher Court home. He had his own bedroom.

68 Whilst he was living at the premises, he bought a Calais sedan.

70 He was supposed to pay rent. The applicant told her that T had fallen behind and that he kept asking for it.

71 On Bathurst weekend 2005 - that is, the weekend of the Bathurst car races, evidence showed that it was on 8-9 October - she went to the home. Only the applicant was there.

72 She asked if she could have a shower. The applicant asked her to wait a minute. She did, then followed him into the bathroom. In the shower, she saw a 'hessian type plastic bag'. It was about a metre and a half high. Another bag was lying on top of it. The bag was leaking what looked like 'bloody water type thing'. The applicant told her that the bag was full of fish.

73 Then, walking up the hallway, she saw a sheet in T's bedroom, draped over the bed. There was a fair bit of blood on it.

74 She asked the applicant if it was 'what [she] thought, his housemate in the bag'. He said 'if you think that is what happened, you can help me'. He told her that there had been a fight about the rent not being paid, that T had been knocked out, and that he had left T for a while.

75 Thereafter, she said, the applicant moved the bag into the backyard. He took it to an incinerator-type drum. He put it in the drum and set fire to it.

76 Several days later, she said, she went to the premises. She swept up what she thought were ashes and fragments of bone, and put them into bags. The applicant put material from inside the barrel into other bags. The barrel was put into T's car, and driven away. She put the bags of material which she had collected into a wheelie bin.

77 She said that thereafter she and the applicant travelled to Queensland in T's motor vehicle. In fact, it broke down on the way. They finished up leaving the vehicle with a friend of the applicant, and completing their journey in a different motor vehicle, which the applicant later sold.

78 She said that, a few months after the Bathurst weekend, the deceased's dog was taken away by a friend, Nicole Donaghy.

79 She said that the applicant and a friend had sold some of T's furniture.

80 She said that she took T's ATM cards and driver's licence from his wallet, which she saw sitting on the lounge room table in the applicant's premises. She gave them to Troy Harris, to whom she was married, but from whom she had separated. He withdrew, in all, $10,000 from the applicant's account. She used some of the money to buy herself a second-hand motor car. Her husband used some of the money to buy himself a motor vehicle.

81 She said also that, shortly before she and the applicant were arrested in June 2008, he told her to say that the Bathurst weekend was the last weekend that they had seen T, that he had driven his motor vehicle to Bathurst, and that she should say nothing about the car or the dog.

83 She agreed that taking the money was her problem alone. The applicant had not known about it. She knew even before her arrest that she had a problem about the money.

84 She agreed that she had initially made a no-comment record of interview, but that, having spoken with a friend and a solicitor, she had spoken at length with an investigating police officer. She agreed that she had been concerned at the time for her own welfare, and for the welfare of her children.

85 She denied that she had been concerned that she would be locked up for murder.

86 She denied that she had been motivated to provide a story that would keep her out of trouble.

87 She admitted to multiple past offending. She agreed that she would use trickery and deceit right up to the time of her 2008 police interview.

88 Questioned about the bag, the witness said that the applicant moved it from the shower to the bath, though she did not actually see him lift it.

89 Questioned about the blood-stained sheet, she said that she could not say if the blood was wet or dry.

90 Concerning her first conversation with the applicant about what was in the bag, she stated that 'the conversation is not vague,' although she said that she could not be sure whether it was she or the applicant who had raised the possibility of T being in the bag.

91 She described him dragging the bag, walking backwards, out onto the back porch.

92 When she saw him again, she said, the applicant was in the backyard, and the bag was in the drum. She had not seen him put it in the drum.

93 She accepted that her evidence had varied as to whether she had seen the applicant set the contents of the drum alight.

94 She was questioned about a hacksaw which she said she had seen near the back door at the time of the critical events. She had identified a hacksaw produced at trial as similar to the one she had seen.

95 Questioned about the occasion on which she said she had swept up around the drum, she stated that it was sitting on a concrete path. She could not be sure if it was on the grass. She did not notice scorch marks, but said that she was not looking.

96 She agreed that she and the applicant did travel to Queensland. Her bank account, I interpolate, showed that withdrawals were made in Queensland on 9 and 10 November 2005; and phone records showed that she made calls in Queensland on 10 and 11 November.

97 It was put to her that T's car had been sold. She could not say. All she knew was that they came home in a different car.

98 Questions were put to her to the effect that the applicant had sold T's furniture so that he could recoup unpaid rent. The witness gave an answer which involved speculation.

99 It was put to the witness that she had told her husband a false story when inducing him to use T's cards to withdraw money. She denied it.

100 She agreed that the applicant had never been violent to her.

101 She denied that her account of the applicant taking and burning the body was a fabrication.

102 There were certainly some variations between the witness's evidence in chief and answers in cross-examination. Her evidence was not supported by forensic or DNA evidence - although Crown witnesses gave an explanation why that was so. There were, in the event, points that counsel for the applicant could make as to the truthfulness and reliability of Harris's evidence; and he did make them in his closing address.

103 But in my view there was no reason why the jury, which saw and heard the witness, might not have accepted the gist of her evidence. Further, although critical parts of her evidence were uncorroborated, there were a number of aspects of her evidence about which the evidence of other witnesses was capable of providing corroboration - the dealings with T's motor vehicle and dog, the trip to Queensland, the sale of some of T's furniture, the withdrawals from T's bank account. Trial counsel for the applicant submitted in his final address to the jury that the witness's evidence was an admixture of things which could be corroborated and critical allegations which could not. He warned the jury against reasoning that, because some of her evidence could be corroborated, it gave veracity to the remainder. It was a point properly made. But it was not decisive against the jury's acceptance of the uncorroborated critical evidence which she had given.

104 Factually, this case was notable for the lack of evidence about critical matters.

105 There was only a skerrick of evidence touching the relationship between the applicant and T. It was to the effect that T owed the applicant rent money, but that he - the applicant - was calm about it.

106 There was no evidence about events leading up to what the Crown contended was the time of death.

107 Nor was there any evidence of the place, time or circumstances of death, other than Ms Harris's evidence that the applicant told her that

There was a fight and that basically [T] had been knocked out and that he'd left him for a while and come back home ...

108 Nor again was there any evidence of any other injuries which T may have suffered, or of any injuries sustained by the applicant.

109 In substance - (1) the fact of the asserted killing; (2) the approximate time of its occurrence; (3) the likely place of its occurrence; (4) the involvement of the applicant in the fatal event; and (5), whether the applicant's involvement had involved the commission of some and what criminal act, depended upon the evidence of Jodi Harris that the applicant had stated that there had been a fight about unpaid rent, and that T had been knocked out, and upon her evidence as to events which occurred subsequent to the presumed killing and inferences which could be drawn therefrom.

110 There was other evidence from which T's death might be inferred: (1) he was not seen or heard of after October 2005; (2) he left his motor vehicle at the applicant's premises; (3) the applicant disposed of the vehicle as if it was his own; (4) T left his dog at the applicant's premises. The applicant disposed of it; (5) T's wallet and cards were left at the applicant's premises, and the latter were used by Jodi Harris and her husband to access T's bank account; (6) T's mobile phone was last used on 7 October 2005; (7) T himself did not access his bank account after October 2005; (8) there was no record of T using any business or Government agency after early October 2005.

111 The evidence to which I have just referred permitted a conclusion to the criminal standard not only that T was dead, but also that the applicant knew he was dead. But it did not cast light on how T had met his death.

112 In the event, as I have said, the evidence upon which the Crown relied to prove that - (1) the applicant had killed T, and (2) that he had done so with murderous intent, depended upon the statement attributed by Ms Harris to the applicant that there had been a fight about unpaid rent, the post-offence conduct of which Ms Harris gave evidence, four asserted lies in the applicant's record of interview made on 9 July 2008, and inferences which, the Crown argued, should be drawn from the conduct and lies.

113 The significance of post-offence conduct must be considered contextually. But here, as I have pointed out, circumstances which commonly provide context were absent.

114 Ground 1 contends that the judge erred in ruling that the post-offence conduct and lies could go in proof of a killing with murderous intent; and that she erred in so directing the jury.

115 The law in this State is as stated in R v Ciantar.[41] There, the applicant had fled after a motor vehicle driven by him was involved in a collision. He was charged with culpable driving.

on the applicant's behalf that the judge should not have left such evidence for the jury to consider or should have directed the jury that they could not safely infer from the applicant's flight that he was conscious of being guilty of culpable driving as opposed simply to being implicated in unlawful conduct which constituted one or more of these lesser offences.[42]

117 The Court rejected that submission. It said this:

[40] 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. Indeed, in the scheme of things, it is not likely to be so in many cases.[43]

118 I should refer also to these passages in the Court's reasons:

[65] Of course, there will be circumstances in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple-count presentment or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.

[66] But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.

[67] Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused's words and conduct before and during the killing and forensic evidence, may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent. And comparable reasoning is equally applicable in trials for other offences.

[68] In some cases, for example, there may be something about the exact terms of a lie which when matched against the known circumstances of the actus reus leads a jury to conclude beyond reasonable doubt that the accused had the necessary intent or mens rea. The point is aptly illustrated in the judgment of Heenan J in Meko v R. In other instances, there may be something about the precise circumstances of flight or the nature of other post-offence conduct which, when related to the circumstances and means by which the actus reus was committed, leads a jury more confidently to conclude that the accused must have had the necessary intent or mens rea. Yet again in other cases it may be a combination of those things with others of similar or disparate kinds, according to the facts of the case, or it may be something else among the myriad facts and circumstances which inform the context to human interaction. Examples can be multiplied.[44]

[72] So, if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect.[45]

119 Several of the passages just cited point up the likely significance of other evidence which establishes a context for considering the inferences which are available from post-offence conduct. It is other evidence which is strikingly absent in the present case.

120 Nonetheless, the question is whether, notwithstanding the absence of other evidence, it was open to the jury to infer a killing with murderous intent. If it was, then the judge did not err in her ruling or in her charge. Ciantar does not say that such an inference could not be drawn in reliance upon post-offence conduct alone.

121 The very experienced trial judge was concerned whether such an inference was available. It was she who raised the issue with counsel. She eventually ruled as follows:

I must say, I am very troubled about this issue of murder and manslaughter. It was not raised by the defence at the close of the Crown case but it still troubles me.

In most cases there are, there is a lot of other material upon which a jury can, in fact, in combination, rely. Here, the only evidence the jury can use or is capable of being used to determine the issue of intent, is the drawing of inferences from post-event conduct because that is what they have to do in respect of post-event conduct.

This material is close to being what is described by the Court of Appeal in Ciantar as intractably neutral but it depends, to a large degree, whether they accept what Ms Harris, the major Crown witness, says.

If they accept that the accused man dismembering (sic) and burnt the body of Trevor Tascas, they may well be able to infer that such conduct was indicative of a callous and deliberate murder and not at all consistent with panic or other matter that may relate to manslaughter.

Accordingly, although I have grave concerns about it, I intend to follow what Ciantar says and allow the jury to make the determination.

I have to say, I may well have taken it away if I still have the power to on the basis of unsafe and unsatisfactory in relation to murder but I don't have that power. It's a matter that resides only in the Court of Appeal.

122 That ruling and that observation do not, of course, bind this Court. But they were, as I have said, the ruling and the observation of a very experienced judge, made in the course of the trial and at the end of the evidence. I do not take them lightly.

123 The submissions which preceded the ruling, and the ruling itself, did not address what might be called a 'non-issue' at trial. That this is so emerges clearly from the fact that submissions were made when the judge raised the issue, from counsels' final addresses, and from the judge's charge.

124 The primary argument for the applicant was that Ms Harris was a liar, whose evidence on critical matters should be rejected. In that event, there was at least no evidence to support a conclusion that, if T was dead, the applicant had anything to do with his death.

125 Nonetheless, in his final address the prosecutor identified, in advance of the address for the applicant, three live issues. The third of them was the applicant's state of mind at the time of the assumed killing of T. Post-offence conduct and lies were called in aid to prove murderous intent. The prosecutor also called those matters in aid of proof of the alternative offence of unlawful and dangerous act manslaughter.

126 For his part, counsel for the applicant in closing address repeatedly submitted that it was for the Crown to prove that his client had committed some crime - 'either murder or manslaughter'; and he submitted that the jury 'could not be satisfied beyond reasonable doubt of either of these crimes, murder or manslaughter'. He referred to want of proof of any relevant intention - that is, on the assumption that T was dead, and that the applicant had caused his death.

127 The judge directed the jury as to the lesser offence - by a written aide memoire, and orally. She explained intention in the context of unlawful and dangerous act manslaughter. She had earlier identified the evidence - post-offence conduct and four specific lies - upon which the Crown relied in proof of intention, that is, in proof of murderous intent, but alternatively in proof of intent relevant to unlawful and dangerous act manslaughter.

128 In this Court, counsel for the applicant submitted that the post-offence conduct was equally consistent with commission of the offences of murder and manslaughter, that it was 'intractably neutral', that it was incapable of being probative of the charged offence as opposed to a lesser alternative.

129 Counsel for the Crown submitted, to the contrary, that what inference was available had to take account of common sense and human experience. Here, the evidence led to a conclusion that the applicant had treated T's body in a savage and callous way. It was conduct incompatible with T having died accidentally, or in consequence of an unlawful and dangerous act by the applicant. What the applicant had done had required considerable fortitude and determination. The applicant had taken multiple risks in what he did, and by reason of the period of time over which he did it. The jury could reason that the applicant had gone to these lengths to destroy the body because it would otherwise have revealed the injuries causing death - injuries incompatible with an accident or unlawful and dangerous act. It had not been enough for the applicant to bury the body; for a buried body might always have been discovered.

130 Although counsel for the Crown focussed upon conduct rather than lies in that submission, it must not be forgotten that at trial the prosecutor relied upon what he asserted were lies told in consciousness of guilt in the applicant's record of interview. The alleged lies concerned - (1) what had happened to T's dog; (2) the applicant's account that T had told him (a) that he was travelling to Bathurst, and (b), that arrangements had been made for looking after the dog; and (3) the applicant's assertion that he did not know what had happened to T's car.

131 Counsel for the Crown did not contend that only an inference of murderous intent was available from the conduct. His argument was rather directed to that being one available inference. He submitted that the evidence of post-offence conduct would support an inference of death by unlawful and dangerous act if it was incapable of supporting an inference of killing with murderous intent, or if the jury had not been persuaded that the latter inference should be drawn.

132 I do not doubt that it was open to the jury to conclude that the applicant had killed T. But then two questions arise. First, was the evidence capable of sustaining an inference of a killing with criminal intent? Second, if the answer to the first question be 'yes', was the evidence nonetheless intractably neutral with respect to drawing an inference whether the killing amounted to murder or manslaughter.

133 The judge had to decide whether the evidence was equally consistent with the intention relevant to unlawful and dangerous act manslaughter. The question was the more difficult to answer because one is a subjective intention, and the other is not. The question was not whether, if the jury used the evidence to infer murderous intention, the verdict could be impugned as unsafe or unsatisfactory.

134 Like the judge, 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 asked 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.[46] It is so essentially for the reasons which her Honour advanced, and because I think that there was force to the amplified submissions which counsel for the Crown made in this Court.

135 The jury was satisfied to the criminal standard, by the totality of the evidence, that the applicant had murdered T. It must have inferred that the post-offence conduct and lies bespoke a killing with murderous intent. Accepting that it was correct for the judge to have ruled that such an inference was available, it does not follow that the verdict was not unsafe or unsatisfactory. Whether it should attract that description depends upon consideration by this Court of the totality of the evidence in the manner described in M v The Queen,[47] re-stated in R v Nguyen.[48]

136 The critical question is whether the jury must have had a reasonable doubt of the applicant's murderous intention. Any doubt which the Court might have about that question is not resolved, in my opinion, by the jury having had an advantage in seeing and hearing witnesses. Once all the evidence had been received, and once the jury accepted, as it evidently did - as in my opinion it was entitled to do - the key aspects of the evidence given by Jodi Harris, the question remains whether the jury must have had a reasonable doubt of guilt of murder; and that depended upon whether the jury must have had a reasonable doubt whether to infer a killing with murderous intent. Whilst the jury was entrusted with 'the primary responsibility of determining guilt or innocence', its conclusion is not beyond examination; and this, for reasons explained, was an unusual case.

137 Absent an inference drawn from the post offence conduct, there was no evidence which could support a verdict of guilty of murder. The statement attributed to the applicant by Ms Harris - that there had been a fight, in which T had been knocked out - did not support such an inference. It bespoke, at its highest, unlawful and dangerous act manslaughter; or otherwise, accident.

138 When I referred to 'conduct' in the preceding paragraph, I meant, essentially, the conduct in disposing of the presumed body described by Jodi Harris. In my view, the four lies upon which the Crown relied could only gain any force by association with that conduct.

139 I consider that this is a case in which the alternative hypothesis - that is, of a killing which constituted unlawful and dangerous act manslaughter - was 'so patently reasonable that no jury properly instructed could rationally exclude it'.[49] Allowing that the jury could infer from Ms Harris' evidence that T's body had been disposed of in a violent way over a protracted period, the step of inferring to the criminal standard that this bespoke a killing with murderous intention rather than a killing by a lesser criminal act required the jury's conclusion[50] about a matter outside common human experience. Even if I thought that the inference of a killing with murderous intent was more cogent than the inference of a killing by unlawful and dangerous act, I consider that, in all the circumstances, the jury must have had a reasonable doubt of the applicant's guilt of murder. Put another way, I have such a doubt, and there is nothing in the jury's seeing and hearing the witnesses which could resolve that doubt so as to enable a conclusion that no miscarriage of justice occurred.

140 Counsel for the Crown submitted that the Court could the more readily conclude that the jury must not have had a reasonable doubt of guilt of murder because it had evidently rejected the applicant's exculpatory account, given in the July 2008 record of interview; and because, the applicant having not given viva voce evidence, the jury might more readily accept the Crown's case. He cited R v Rice,[51] one of series of authorities in the High Court and this Court in which the significance of an accused standing mute has been discussed.

141 In considering this matter, a number of points should be made at the outset. First, I reiterate that at no stage in the trial was this argument advanced. Second, in this Court there was no analysis of the effect of High Court authorities subsequent to Rice. Third, neither was there any analysis of the points of similarity or difference in the two streams of circumstances where an accused's silence has fallen for consideration - that is, where a comment has been made at trial, and where silence is relied upon to sustain a conviction on appeal. In all, the setting is an extremely unsatisfactory one in which to consider the submission which was advanced for the Crown.

142 Against that background, it is my opinion this was not a case in which the applicant's silence was capable of assisting the Crown case with respect to the critical inference.

143 In the High Court, the modern starting point for consideration of the significance of an accused's silence is Weissensteiner v The Queen.[52] The appellant did not argue that there was no evidence to support the verdict of guilty of murder, or that the conviction was unsafe. Any attempt to do so must have failed, because there was said to be 'abundant evidence' from which the jury might have concluded that the presumed victims were dead and that 'the appellant had been involved in their deaths'.[53] Further, the appellant had given a series of inconsistent accounts of what had happened to the presumed victims; and he had never asserted ignorance of their whereabouts, or the reason for their absence. Understandably, in those circumstances, the appellant relied upon an alleged misdirection - that is, that the jury might more safely draw an inference of guilt of murder because the appellant had not given evidence of relevant facts which could be perceived to be within his knowledge.

144 There was held to be no misdirection. Mason CJ, Deane and Dawson JJ said that

it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court . evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept that contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trials, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.

Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial judge to warn the jury accordingly.

Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof to cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.[54]

145 Their Honours were there focusing upon directions to a jury. But what they said was, I consider - subject to subsequent explanation - equally apposite to the question whether an appellate court is able in a particular case to make use of an appellant's silence to sustain a conviction.

146 The apparent breadth of the significance of an accused's silence conveyed by the passage cited at paragraph 99, however, has been much narrowed by subsequent High Court Authorities. Necessary caution in reasoning from silence was underlined by Gaudron A-CJ, Gummow, Kirby and Hayne JJ in RPS v The Queen.[55] Their Honours said this:

It is necessary to keep at the forefront of consideration that the mode of reasoning which is described proceeds from the premise that the person who has not given evidence not only could shed light on the subject but also would ordinarily be expected to do so.

In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence.

By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused

147 The joint judgment of Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi v The Queen,[56] another comment case, explained how Weissensteiner and RPS could be reconciled.[57] The 'rare and exceptional' case in which a comment will be justified

will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Once that is appreciated, the supposed tension between Weissensteiner and RPS disappears. In Weissensteiner, the comment related to the absence of evidence of additional facts peculiarly within the knowledge of the accused; in RPS, there was no question of any additional fact known only to the accused merely the failure to contradict aspects of the prosecution case.[58]

The facts which it is suggested could have been, but were not, revealed by evidence from the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial.[59]

149 In Rice, cited by counsel for the Crown, the question was whether a verdict of manslaughter was unsafe or unsatisfactory. The judge had taken away murder. The murder/manslaughter inference issue did not arise for the consideration by either the jury or this Court. The question which did arise was whether an inference had safely been drawn of death by criminal act rather than death by natural causes or non-criminal act.

150 Brooking JA analysed instances, inter alia, in which an accused person had concealed a body, had lied about it, and had been convicted of murder.[60] The factual circumstances in those cases had been many and varied; and, as his Honour noted, many of them preceded Woolmington v DPP,[61] and so were 'of little assistance when one is considering whether an inference of murder as opposed to manslaughter may be drawn'.[62] More recent cases to which his Honour referred - including, very briefly, Weissensteiner - had raised a variety of issues on appeal.

151 One of the authorities cited by Brooking JA in Rice was R v Neilan.[63] There, the Full Court stated, before mentioning that the applicant had stood mute, that-

there was a substantial quantity of evidence to entitle a jury, acting reasonably, to convict the applicant. Indeed ... the case was in our opinion very strong.

152 Similarly, in R v Cengiz,[64] Charles JA stated that there was, in his view,

Ample evidence upon which the jury was entitled to reach a verdict [of attempted murder][65]

[The] hypothesis consistent with innocence was at most a remote possibility.[66]

153 Each of Neilan, Rice and Cengiz preceded RPS and Azzopardi. Each of them, also, was factually remote from the present case. Each of them epitomised circumstances in which the silence of an accused has been invoked in support of a jury's verdict. In each instance the Crown case was otherwise a strong one. The same may be said of R v Doherty.[67]

154 In the present case, the applicant gave an exculpatory version of events. It went into evidence. The jury evidently rejected it. The jury must have rejected it in reliance upon Ms Harris' evidence, and inferences arising there from. The jury was thus able to conclude that T met his death at the applicant's hands. But that left unresolved the question whether the jury must have had a reasonable doubt about murderous intention. Respecting intention, the evidence permitted the drawing of different adverse inferences. The inference of murderous intention, at its highest, was scarcely more probable than the other. It appears to me that the matter is one in which the applicant's silence could not be used as a make-weight to overcome a deficiency in the Crown case.[68] The deficiency arose from the fact that each of the competing inferences as to intention was rationally available. The applicant's silence was equivocal. There being two rationally available inferences, his silence could provide support for neither one of them particularly. It is not to be forgotten that the onus of proof remained with the Crown.

155 Further, and importantly, in my opinion it would be wrong to approach the matter from the standpoint that the inference of murderous intent could be more safely drawn because the applicant had not given evidence at large. The inference of murderous intent was said to arise from particular conduct and four lies. The Crown had adduced evidence of both the conduct and the lies. It was not sufficient to assist the Crown case that the applicant had not contradicted evidence already given.

156 In my opinion, the application should be granted and the appeal allowed. The murder conviction should be quashed, and an acquittal entered on that count. The applicant should be remitted for retrial on a count of manslaughter. All the evidence adduced at the first trial would appear to be admissible on a retrial. On a

retrial for manslaughter, assuming that the jury was satisfied that the applicant had killed T, the post-offence conduct and lies would be well capable, in my view, of standing as an implied admission of killing by an unlawful and dangerous act. Conceivably, that conduct and those lies might be taken to bespeak an accidental killing. But I consider that the evidence would be far from intractably neutral if those possible competing inferences fell for consideration.

157 I have had the advantage of reading in draft the reasons for judgment of Ashley JA. I agree with his Honour that the appeal should be upheld and the conviction set aside. I also agree with the orders proposed by Ashley JA.

[1] R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4.

[2] [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113] (citations omitted).

[3] (1994) 181 CLR 487, 493-4.

[4] R v Shah [2007] SASC 68, [4].

[5] Morabito v The Queen [2007] NSWCCA 126, [34].

[6] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 211.

[7] See Cotter v The Queen [2011] VSCA 240, [24]-[30].

[8] Cf Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107.

[9] [1992] VicRp 5; [1992] 1 VR 57.

[13] [1996] 2 VR 406, 421 ('Rice').

[14] State v Kader (1954) 270 P2d 160, 173.

[15] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 227-8 ('Weissensteiner'); R v Neilan [1992] VicRp 5; [1992] 1 VR 57.

[16] Rice [1996] 2 VR 406, 421 (emphasis added).

[17] Weissensteiner [1993] HCA 65; (1993) 178 CLR 217.

[19] [1998] 3 VR 720 ('Cengiz').

[21] Ibid 737, citing Bridge v The Queen [1964] HCA 73; (1964) 118 CLR 600, 615.

[22] [2000] HCA 3; (2000) 199 CLR 620, 632-3 [27] (Gaudron AC-J, Gummow, Kirby and Hayne JJ).

[23] (2001) 205 CLR 50, 73-75 [61]-[68] (Gaudron, Gummow, Kirby and Hayne JJ).

[24] Weissensteiner [1993] HCA 65; (1993) 178 CLR 217, 238.

[26] Cengiz [1998] 3 VR 720.

[27] R P S v The Queen [2000] HCA 3; (2000) 199 CLR 620, 632-33 [27]; Azzopardi v The Queen (2001) 205 CLR 50, 73-4 [61]-[62].

[28] See, for example, R v Hoh [2000] VSCA 155, [65]; R v Dolheguy [2001] VSCA 50, [82]; R v Roba [2002] VSCA 74, [44]; R v Doherty [2003] VSCA 158; (2003) 6 VR 393, 409-10 [27]; R v Rajakaruna [2004] VSCA 114; (2004) 8 VR 340, 377 [165].

[30] Cengiz [1998] 3 VR 720, 722.

[31] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495, 503.

[32] Cengiz [1998] 3 VR 720, 723 (emphasis added).

[33] [1990] HCA 51; (1990) 171 CLR 207.

[35] See [12] above.

[36] As to the applicability of the 'out of proportion' test to post-offence conduct, see R v Ciantar (2006) 156 VR 26, 46 [63], referring to R v Heyes [2006] VSCA 86; (2006) 12 VR 401, [49], in turn quoting from the Supreme Court of Canada in White v The Queen (1998) 125 CCC (3d) 385, 402-3. Although Ciantar overruled Heyes, nothing said in Ciantar cast doubt on that approach: see [64].

[38] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 39 [40].

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

[40] [1993] HCA 63; (1993) 178 CLR 193.

[41] [2006] VSCA 263; (2006) 16 VR 26.

[46] Contrast the circumstances which arose in R v Panozzo [2007] VSCA 245; (2007) 178 A Crim R 323, Johnstone v The Queen [2011] VSCA 60 and Pollard v The Queen [2011] VSCA 95.

[47] (1994) 181 CLR 487.

[48] [2010] HCA 38; (2010) 242 CLR 491, 499 [33].

[49] R v Cengiz [1998] 3 VR 720 , 722 (Ormiston JA).

[50] And, in the context of ground 2, my conclusion.

[51] [1996] 2 VR 406, 421 (Brooking JA).

[52] [1993] HCA 65; (1993) 178 CLR 217.

[55] [2000] HCA 3; (2000) 199 CLR 620, 632-633 [25]-[27].

[57] Ibid 64 [34], 71-75 [57]-[68].

[60] R v Rice [1996] 2 VR 406, 411-417.

[62] [1996] 2 VR 406, 413 (Brooking JA).

[63] [1992] VicRp 5; [1992] 1 VR 57.

[64] [1998] 3 VR 720.

[67] [2003] VSCA 158; (2003) 6 VR 393, 409-410, [27].

[68] Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 226 and 229 (Mason CJ, Deane and Dawson JJ).