Crown v Accused

Marshall Jovanovska Ralph Criminal and Migration Lawyers

1. The accused is charged with attempted murder (charge 1), intentionally causing serious injury in circumstances of gross violence ('ICSIGV') (charge 2), and reckless conduct endangering a person ('reckless conduct') (charges 3 and 4). The evidence has concluded in the trial and discussions under the Jury Directions Act 2015 ('the Act') have taken place.
2. An issue has arisen as to whether the prosecution should be permitted to rely upon two items of the conduct of the accused following the incident in which Shari Grey, the alleged victim of charges 1 and 2, was set alight and sustained serious burns.

1. The facts of the case can be stated fairly briefly in the context of the issues to be determined in this ruling.
2. Ms Grey lived with others in a unit at 2/9 Rivercoast Road, Werribee South. The accused, his partner Blane Sarah, and their two children, lived next door at number 11. It is alleged by the prosecution that following a dispute about noise being made by Ms Grey and others during the evening of 27 December 2022 and into the early hours of the next day, the accused became angry at Ms Grey, and decided to do something about it. It is alleged that he invited her out the front of the properties intending to attack her. He had with him a blue bucket containing accelerant, a blow torch, and, at some point at least, a loaded sawn-off .22 calibre rifle. On the prosecution case, he invited Ms Grey over towards him on the nature strip near his front gate, threw the accelerant over her upper body, then ignited the propellant using the blow torch which he was holding, causing Ms Grey to burst into flames.
3. It is alleged that having set Ms Grey alight, the accused then proceeded into his driveway, discharged the firearm, and went inside. The evidence indicated that the accused then told his wife to collect the children and that they were leaving. Shortly after 1.56am, Ms Sarah came into the bedroom of her eldest daughter, in a 'flustered' state, and told her that they needed to go. Using her daughter's mobile phone, she called triple 0 to seek assistance at her home address, which she stated. Ms Sarah sounded distressed during the call. The sound of a male yelling could be heard during the call. According to the statement of the eldest daughter, read into evidence by agreement during the trial, Ms Sarah terminated the call after the accused came into the room and told Ms Sarah to hang up.
4. On the prosecution case, the accused, Ms Sarah and their children, all then proceeded to the Toyota HiLux utility parked in the driveway. The accused then reversed the vehicle out of the driveway and rapidly left the scene, turning left into Beach Road at the end of Rivercoast Road, before proceeding in an easterly direction. Shortly after turning out of Rivercoast Road, the HiLux drove past a marked police vehicle coming the other way in Beach Road, and was observed by the occupant of that vehicle, Sergeant Svanfelds. When next observed by police, the HiLux was proceeding west on Duncans Road in the direction of the Princes Freeway. A police vehicle performed a U-turn and then followed the HiLux, as it proceeded to the Werribee Police Station. The HiLux pulled into the car park and the accused was arrested by police. The blue bucket and blow torch were found in the tray of the vehicle. The sawn-off rifle was found under the front passenger seat. The rifle was loaded with a cartridge in the breach and four cartridges in the attached magazine.
5. The accounts of both children indicated that at some point during the trip from Rivercoast Road to the police station, the accused said that he was going to 'hand himself in' or 'turn himself in'. The younger child's statement was also read into evidence by agreement.
6. In his affirmed evidence before the jury, the accused gave an account of events in which he was at no time the aggressor, and in which Ms Grey had caught on fire through no deliberate action of his. In respect of his departure from his home afterwards, he indicated that this occurred because he considered it unsafe to remain there, and decided to proceed straight to the police station with his family. He admitted placing the firearm in the vehicle, but denied any knowledge of how the bucket and blow torch came to be in the tray of the vehicle. He admitted seeing Ms Sarah on the phone when he came into the house but denied being aware that Ms Sarah was on the phone to triple 0, and denied telling her to get off the phone. Rather, he claimed he told her, 'Come on, let's go'. When asked during cross-examination who he thought she had been on the phone to at the time, he said, '[p]robably her sister, whenever there's an emergency she's always on the phone to her sister, whatever it is.'[1] Also during the trip, the accused stated that he called a friend in search of the name of a criminal lawyer. This was provided to him, and he telephoned the lawyer seeking legal advice. The accused denied seeing any police cars on his trip to the police station, and justified seeking to call a lawyer because he wanted to talk about his admitted illegal possession of the firearm, and the whole incident.

Matters sought to be relied upon as incriminating conduct

1. The two matters sought to be relied on as incriminating conduct, as set out in the notice dated 23 May 2024 were:
   1. The accused directed Blane Sarah to terminate the phone call she had made to triple 0 immediately after the alleged offending; and
   2. The accused fled his home with Blane Sarah and his two children immediately after the alleged offending.

The prosecution submits that the above conduct is capable of being regarded by the jury as conduct amounting to an implied admission by the accused in seeking to avoid detection and apprehension that the accused had committed a serious violent criminal offence against Shari Grey for which he knew he had no lawful defence or excuse.

conduct means the telling of a lie by the accused or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

incriminating conduct means conduct that amounts to an implied admission by the accused -

a) of having committed an offence charged or an element of an offence charged; or

b) which negates a defence to an offence charged;

offence charged includes any alternative offence

1. Section 19 sets out the requirement for the prosecution to give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct.
2. Section 20(1) of the Act, in setting out the test of admissibility of evidence of incriminating conduct, relevantly provides:

The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless -

(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that -

a) The jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that -

1. the conduct occurred; and

2. the only reasonable explanation of the conduct is that the accused held that belief; and

b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

1. Maxwell P in DPP v Scriven (Ruling No 4) ('Scriven')[2] pointed out that the terms of the directions required by the forerunner to section 21(1) of the Act in the previous Jury Directions Act 2013:

illuminate the task of the trial judge in making the determination under s 24(1)(b). Thus, in determining whether the evidence 'is reasonably capable of being viewed by the jury as evidence of incriminating conduct', the judge is deciding whether it would be reasonably open to the jury to conclude that:

• the conduct occurred; and
• the only reasonable explanation of the conduct was that the accused believed he had committed the offence charged or had not acted in the belief that he needed to do what he did in order to defend himself. [3]

1. In DPP v Zhuang (Ruling),[4] Kaye J,[5] in a ruling cited with approval by Maxwell P in Scriven, described the task of the trial judge determining the admissibility of incriminating conduct evidence as follows:

The question in any case whether a jury should draw a particular inference is of course essentially a question of fact for the jury and not for the judge. It is not my task to determine whether the jury should draw the inference contended for by the prosecution. Rather at this stage my task is to determine whether the jury acting rationally could conclude that the only reasonable inference from the post-offence conduct indulged in by the accused is that contended for by the prosecution. (See R v Cengiz).

Thus where the prosecution seeks to rely on post offence conduct, the test for myself as the trial judge is whether the jury could rationally conclude that the only reasonable inference to be drawn from that conduct is that contended for by the prosecution, namely, an awareness that she had murdered her daughter-in-law and was not acting in self-defence; see R v Ciantar; the Jury Directions Act 2013 s 25(1)(a)(ii)

Further, the test which I must consider is not whether standing alone the only reasonable inference to be drawn from that conduct is that the accused acted as she did, because of a belief that she had murdered Selina Lin without justification. Rather it is plain that that question must be considered in the context of all the evidence in the case, and the background circumstances to it. (R v Ciantar; Jury Directions Act 2013 s 24(1)(b). [6]

1. The Court of Appeal has given its imprimatur to the proposition that the mandatory direction in s 21(1)(a)(ii) impacts upon the task of a trial judge in the determination under s 20(1)(b). In Doherty v The Queen,[7] the Court considered a ground of appeal that the trial judge had wrongly concluded that evidence of the involvement of the applicant in a siege in the aftermath of his stabbing of the deceased was capable of being viewed by the jury as evidence of incriminating conduct. Having set out the relevant portions of sections 20 and 21 of the Act, the Court stated:

Accordingly, in the present case, in determining the admissibility of the evidence relating to the siege, the judge was required to determine whether the jury could rationally conclude that the only reasonable inference to be drawn from the applicant's conduct in relation to that siege was that contended for by the prosecution, namely, that he knew that when he stabbed Stevens he had intended to kill him or cause him really serious injury, and that he did not believe that he acted in lawful self-defence in doing so.[8]

1. In R v Ciantar,[9] the Court of Appeal held that the trial judge had not erred in directions he gave to the jury about the use of the applicant's flight from the scene of a fatal pedestrian collision which had led to the central charge of culpable driving being laid. It was argued on behalf of the applicant that flight should not have been left for the jury's consideration at all, or that alternatively the jury should have been directed that they could not safely infer from his flight that he was conscious of being guilty of culpable driving, as opposed to simply being implicated in unlawful conduct which constituted one or more of the lesser offences.
2. In rejecting the argument, and declining to follow the earlier decision of R v Heyes,[10] the Court stated:

In our view the argument cannot be sustained. For even allowing that a possible explanation of the applicant's post-offence conduct was that he was conscious that he had committed one or more of the lesser offences, as opposed to the offence charged, it does not follow that the post-offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he had committed 'the offence charged'.

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 the 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. And, to the extent that Heyes implies the contrary, in our view it should not be followed.[11]

1. In DPP v Lynn ('Lynn'),[12] the Court confirmed the status of Ciantar as an authoritative statement of the law applicable to incriminating conduct evidence, notwithstanding the passage of time and the introduction of the Act since Ciantar was decided.
2. In Lynn, the Court considered an interlocutory appeal by the Crown from a decision of the trial judge that various steps taken by the accused in the aftermath of the two killings with which he was charged were not reasonably capable of being viewed by a jury as incriminating conduct with respect to the murder of the deceased.
3. During the appeal, counsel for the respondent submitted that the trial judge had been obliged to anticipate how a rational jury would undertake the exercise of assessing competing explanations for the conduct. It was argued that Scriven 'amplified' Ciantar in a post-Jury Directions Act environment. That contention was resoundingly rejected by the Court, which held that Ciantar had found expression in ss 20 and 21 of the JDA, and that the common law authorities including Ciantar remained good law.[13]
4. The Court stated:

It is clear from the statutory provisions that the decision of a trial judge pursuant to s 20(1)(b) does not concern the admissibility of evidence but rather the manner in which evidence may be used. That is, the judge must determine whether the evidence is reasonably capable of being viewed by the jury as evidence of an implied admission by the accused of having committed an offence charged, an element of an offence charged or negating a defence to an offence charged. That determination must be based on the whole of the evidence. It involves no determination of whether the jury would so view the evidence, only whether the jury could do so. In accordance with the mandatory s 21(1)(a) direction, the jury must be directed that the evidence of conduct may only be treated as evidence of incriminating conduct if the jury concludes that the only reasonable explanation of the conduct is that the accused believed that s/he committed an offence or an element of an offence charged or negated a defence to an offence charged.

Under s 20(1)(b), the judge has a gate-keeper role. The central issue is the capacity of the evidence to found a process of reasoning. The judicial determination that the evidence has the relevant capacity is a necessary pre-condition to the later determination by the jury whether or not to adopt that reasoning, subject to the mandatory direction in s 21(1)(a). Section 20(1)(b) is a broad filter as to whether the evidence is fit for the jury's consideration as an implied admission of guilt. Section 21(1)(a) constrains the jury in how that consideration is performed.

The combination of these provisions indicates that the JDA contemplates that post-offence conduct evidence may be presented to the jury as evidence of incriminating conduct of the offence charged that ultimately may not be able to be treated as such by the jury because there are other reasonable explanations for that conduct. In other words, evidence of conduct explicable by more than one reasonable argument will, usually, pass through the gateway in s 20(1)(b).[14]

24 Having set out a passage from Scriven, the Court stated:

Thus the s 20(1)(b) question is not whether the only reasonable explanation for the conduct is that the accused believed he or she had committed the offence charged, but, rather, is another explanation one which the jury could accept or reject as reasonably possible. If so, the evidence must pass through the gateway. It is then for the jury to determine whether, on the evidence as a whole and bringing its collective life experience, wisdom and common sense, it accepts or rejects the reasonable possibility of the non-incriminating or alternative explanation.[15]

25 Describing s 20(1)(b) of the JDA as a 'broad filter', the Court observed:

Neither the Zhuang nor Scriven formulation of the s 20(1)(b) determination should be read to suggest that the judge is to determine on the evidence or lack of it whether the jury should reject the non-incriminating explanation. As we have stated, given the relationship between the s 20(1)(b) judicial determination and the s 21(1)(a) mandatory jury direction, the JDA contemplates that conduct evidence will be presented to the jury as evidence of incriminating conduct of the offence charged but ultimately not treated as such by that jury. Where the conduct is capable of reasonable explanation either as a belief in manslaughter or a belief in murder, the question must be left to the jury, save for the unusual case, not this case, where the conduct is equally consistent with both explanations and there is no other evidence that bears upon the issue.[16]

1. Ms Moran, who appears with Mr Tamburro for the prosecution, submitted, in respect of the first of the matters sought to be relied upon, that the evidence indicated that the accused told Ms Sarah to terminate her call to triple 0 in circumstances where he must have been aware she was talking to the triple 0 operator. It was submitted that his purpose in doing so was to avoid first responders being sent to the premises. In those circumstances, the jury would be able to conclude that he took this action because he knew he had carried out the conduct alleged in the first two charges and was seeking to avoid detection for his actions.
2. In relation to the second matter, Ms Moran focused attention on the decision the accused made to leave his premises, in company with his partner and children. Rather than remain at the scene and await the arrival of the police, Ms Moran submitted that the accused decided to promptly depart the scene and take with him the incriminating items - the bucket, the blowtorch and the rifle - making no attempt to provide any assistance to Ms Grey. He did so, it was submitted, to avoid detection. The conduct of the accused in fleeing the scene in those circumstances was not rendered any less capable of amounting to an implied admission of guilt by his subsequent decision to drive to the police station. The evidence indicated that the accused drove past a marked police vehicle shortly after he turned into Beach Road. He later drove past another police vehicle which did a U-turn and followed him as he proceeded along to the west. He became well aware of the predicament he was in, and the phone calls he made to a friend and to a lawyer's office on the way to the police station go to demonstrate that his thought processes were evolving. It was submitted that in the overall circumstances, the jury would be entitled to conclude that when he fled his house with his family, it was not his intention to drive straight to the police station. There would be no point in doing that. He simply could have stayed where he was and awaited the arrival of the police.
3. Ms Moran indicated that the prosecution would seek to rely on the incriminating conduct as going to elements 1, 2 and 4 of the attempted murder charge, elements 2, 3 and 6 of the charge of ICSIGV, and elements 1 and 2 of the reckless conduct charges.

1. Mr Dann KC, who appears with Mr Marsh for the accused, submitted that there is no, or insufficient evidentiary basis, for the prosecution contention, upon which the first item of incriminating conduct relies, that the accused realised that Ms Sarah was speaking to police/triple 0 at the time he directed her to terminate the call. He outlined the relevant portion of the statement of the accused's eldest daughter, and submitted that there was no indication that the accused was present for the start of the call, or when any request was made for police attendance. He submitted that the accused gave an alternate explanation for the events in his evidence, as briefly summarised at [8].
2. Mr Dann submitted that the context in which both items of alleged incriminating conduct occurred was that the accused was trying to get everyone out of the house, in circumstances where, as Mr Dann put it, the accused had every reason to consider the house to be an unsafe place to remain, and to seek to get his young children and partner out of there. He pointed to evidence that Shari Grey had earlier threatened to come to the accused's house and 'fuck' him and his wife up, and the accused's evidence that a group of people from next door had come towards his house.
3. Mr Dann submitted that even if there was evidence which would warrant a conclusion that the accused knew Ms Sarah was speaking to the triple 0 operator, there would be a reasonable explanation for the conduct other than that pointed to by the prosecution. Mr Dann submitted that the desire of the accused to leave the house with his family as quickly as possible, in light of his reasons for feeling unsafe in those premises in the circumstances, 'is a reasonable explanation that arises in this case'.[17]
4. When asked why the accused needed to have his partner terminate the phone call in order to have her leave the premises quickly, Mr Dann said, 'because he's got to get the children, you've got to get moving, not just be on a phone call, we're leaving, we're going to the police..'[18] There was unchallenged evidence that that is what the accused told Ms Sarah, submitted Mr Dann.
5. Mr Dann initially submitted that all the jury would have in reaching a conclusion about whether the accused knew Ms Sarah was talking to the authorities when he told her to terminate the call, was what the eldest daughter had said about the event in her statement. He later acknowledged that the jury would also have the proven surrounding facts of the case to consider.
6. In commencing his submissions in respect of the matter of flight, Mr Dann said, 'any objective observer would understand that to be an unsafe place to stay in those particular circumstances.'[19] He went on to submit, 'it is perfectly understandable why he would say, why anyone would say that was not a safe place to remain'.[20]
7. Mr Dann later refined the above characterisation by submitting that the accused leaving the house with his family as quickly as possible because he was in fear of attack was a 'reasonably available construction, hypothesis that a jury would not be able to exclude'.[21]
8. In relation to the fact that the accused made no attempt to render assistance to Ms Grey as he drove away, and that the bucket, blowtorch and gun were taken away from the scene in the vehicle, Mr Dann pointed out that these items were not specified in the incriminating conduct notice, and described them as being irrelevant to the determination of the issue. He also submitted that a number of people could have placed the bucket and blowtorch into the tray of the utility, and that for the jury to consider that the accused must have done so would be 'just guesswork'. [22]
9. Mr Dann invited me to use the accused's contact with a lawyer while en route to the police station as an item of evidence supporting his contention that going to the police station was always the accused's intention.
10. In his submissions before me, Mr Dann relied upon the decision of Lynn, and particularly at [126], as supporting his contention that neither item of conduct relied upon by the Crown would pass the test for use as incriminating conduct.

1. Ms Moran asserted that Mr Dann had misstated the true test as set out in Lynn, conflating the task that the jury must undertake should evidence be left for their consideration with the task presently required to be undertaken by me. She relied upon Lynn at [114]-[116] as setting out the correct position.
2. She submitted that it is a matter for the jury what evidence they accept and reject, including out of the accused's evidence. She disputed that the evidentiary basis on which the jury could conclude that the accused knew Ms Sarah was talking to the authorities when he told her to hang up could properly be described as 'scant'. As well as the call itself, showing a male voice audible in the background, the jury would be entitled to consider all of the circumstances in which the call was made.
3. Ms Moran submitted that if the jury accepts the evidence about the circumstances in which the accused left the house, and considers it possible he had no knowledge as to who was on the other end of the call, they will never get to the point of contemplating whether his conduct in directing Ms Sarah to terminate the call was incriminating. In light of the overall evidence, the jury could properly conclude that the accused, in the knowledge that Ms Sarah was on the phone to triple 0, directed her to hang up, and that the only reasonable explanation for that was because he knew that he had deliberately set Ms Grey alight without any lawful excuse. She submitted that all of the concerns expressed by Mr Dann would be matters which he could argue before the jury.
4. In relation to the flight, Ms Moran again pointed to the totality of the circumstances in which that occurred, including the fact that the bucket, blowtorch and gun were taken away from the scene, and the fact that the accused drove past a marked police vehicle shortly after leaving the scene.
5. Briefly in further reply, Mr Dann stated that his argument in relation to Lynn was based on [121] and [126], and stated:

The way it's framed in Lynn is, is the alternate explanation the one consistent with innocence, or inconsistent with incriminating conduct reasoning, does that arise on the evidence firstly, secondly, is it capable of rejection, capable of acceptance, if it's just in that sort of neutral category, well the gateways are passed, but if Your Honour identifies the jury would not be in a position to reject that innocence explanation, then the gateways are not passed. [23]

1. I do not accept that Mr Dann stated the incorrect test in his reliance upon Lynn. The one paragraph to which he initially referred, [126], does not detract from the clear rationale of the judgment as a whole that my task at this time is as the gate-keeper, and that task is an entirely separate and distinct one from that undertaken by the jury should the alleged incriminating conduct be left for their consideration.
2. It is important to note that my determination at this time whether the relevant conduct is reasonably capable of being viewed ty the jury as incriminating conduct is required to be based on the evidence as a whole. That proposition is set out in s 20(1)(b) of the Act and repeatedly emphasised in Lynn and the other authorities.
3. So, in considering whether the first item of conduct passes the test, I must look at all of the circumstances of the case. When the accused directed his partner to terminate that phone call, as he undeniably did, in light of the evidence of the eldest daughter, that did not occur in isolation. It occurred in the context of all of the events both preceding and following it. The accused had only moments before been involved in a scene in which, on his own admission, he threw what turned out to be accelerant on top of Ms Grey, and in some manner, while very close to him, she was set alight, with the real likelihood that she would be seriously injured, at the very least. This, then, was a very serious incident, of which the accused had detailed knowledge. He then quickly left that scene and went inside his home. His partner, who had been close by when the incident unfolded, was engaged in a phone call. The accused directed her to terminate the call. He then gathered his family together, and proceeded to his car. Three items which were relevant to the incident which had occurred minutes earlier, the bucket which held the accelerant, the blowtorch, and the gun which the accused, on his own admission, fired into the air, found their way into the vehicle. The accused then immediately drove away from the scene, passing at least two marked police vehicles as he made his way to Werribee Police Station.
4. Mr Dann submitted that there is no, or insufficient evidentiary basis, for a conclusion by the jury that the accused realised Ms Sarah was speaking to the police or authorities. I do not agree. He sought to focus solely on the words in the eldest daughter's statement, and some of the assertions made by the accused in his evidence, at the expense of a consideration of all of the surrounding circumstances.
5. It would be open to the jury to consider in the circumstances of this case that if the accused did not realise to whom Ms Sarah was talking in that phone call, or thought she might be talking to her sister, there would have been no reason to direct her to terminate the call. Wanting to have his family quickly leave the house would have presented no reason to have her terminate that call. The jury might consider that the accused, in the position he was, would have seen a strong need to immediately call for assistance, rather than simply depart the scene. Seeing his wife on the phone in the immediate aftermath of the shocking events, the jury may consider that it would likely have occurred to him that she was, or might be, on the phone to triple 0.
6. In my view, it would be open to the jury to conclude that the accused was aware that Ms Sarah was on the phone to the authorities when he told her to terminate the call. That would be a matter for the jury to contemplate, and they will have the benefit of the diametrically opposed characterisations of counsel for the prosecution and defence in contemplating that aspect of the evidence.
7. If the jury are not satisfied that the accused knew Ms Sarah was talking to the authorities, they would never get to the point of determining what conclusions they could reach from that fact. In the event the jury was satisfied of that factual pre-condition, then the question remains whether that conduct is reasonably capable of being viewed by them as an implied admission.
8. Mr Dann pointed to another possible explanation for this conduct, to be found in the desire of the accused to leave the house as quickly as possible with his family, in light of reasons he had for feeling unsafe in those premises. That possible alternative explanation is one which no doubt can be considered by the jury, and what they make of it is a matter for them. For my part, I believe it would be open to the jury to reject that explanation as being reasonably open.
9. In the exercise of my function as the gate-keeper at this stage of proceedings, and having considered all of the submissions of counsel, the requirements of the authorities, and the evidence as a whole, I have determined that the evidence of the accused directing Ms Sarah to terminate the phone call does pass the test for use as incriminating conduct set out in s 20(1)(b).
10. Turning to the second matter, the accused's flight from the scene, again, the determination under s 20(1)(b) must be made on the basis of the entirety of the evidence. Mr Dann relied heavily upon aspects of the evidence which led him to contend that, looked at objectively, the accused had every reason to fear that his home was an unsafe place to stay, and that it was necessary to immediately flee. That, no doubt, is a submission he would make to the jury, but in my view, it is a contention that may, to some, seem unrealistic, and might be rejected. The preponderance of the evidence may be considered by the jury to indicate that it was the accused who was the aggressor in his dealings over the fence with those at 2/9 Rivercoast Road, and he was the person who invited Ms Grey to come out the front of the properties. There is no evidence that Ms Grey or any of her friends were armed. There is no evidence that even after Ms Grey was burnt, any of her friends sought to attack or physically threaten the accused, or to intrude onto his property. When the accused went into his house, the jury may consider that he was safely inside a secure home, protected by a security system, armed with a loaded firearm, and equipped with a mobile phone with which he could readily summon the police.
11. The jury, like all juries, will be able to bring their collective life experience, wisdom and common sense[24] to bear in considering the evidence in this case, and the arguments which will be put by counsel. What the jury might make of the respective contentions of the parties is a matter for debate. The jury may consider there is merit in the defence contention that the accused had good reason to be fearful about remaining at the premises, and that all he intended when he departed the scene with his family was to go to the police station. Should the jury consider that to be a realistic possibility, then they would not use the conduct in a way adverse to the accused. On the other hand, it may well be that the jury might consider that his conduct in immediately gathering his family together and quickly departing the scene, in possession of the bucket, blow torch and gun, in the knowledge of the fact that a woman lay injured out the front, was extraordinary, and could not sensibly have been motivated by a fear of reprisal.
12. In considering the conduct of the accused, the jury would be perfectly entitled to have regard to the fact that the bucket and blowtorch both ended up in the tray of the utility. The jury would be entitled to consider that the only person who could realistically be responsible for that fact was the accused_._ Mr Dann submitted that such a conclusion would be 'guesswork'. I do not agree. It would be a reasonable conclusion. And it would be relevant to what the jury might make of the accused's initial departure from his home. After all, he took with him items that might be incriminating.
13. It is a matter for the jury to consider what to make of the fact that the accused drove directly to the police station. The Crown contention is that, in light of the fact that in time, the accused must have become well aware that he had been observed by police, the fact that he went to the police station does not detract from the reality that he departed the scene of a very serious event, taking with him items which had been used by him during the incident, in circumstances indicating that at that time, his intention was to flee. The defence, on the other hand, will assert that every indication is that the accused always intended simply to drive to the police station.
14. If the jury are attracted to that latter position, then they will not rely on the conduct in any way adverse to the accused. But it is a matter for them what view they reach of the evidence.
15. Again, in respect of this second aspect of the conduct of the accused, I have determined on the basis of the evidence as a whole that it is reasonably capable of being viewed by the jury as incriminating.

1. The jury will be directed that they may, if they choose, rely upon the two items of evidence as strengthening the prosecution case on all of the charges on the indictment by going directly to the elements of the respective crimes as discussed during the submissions before me.

[1] Trial Transcript, 16 September 2025, 1765 ('Trial transcript').

[2] [2015] VSC 220 ('Scriven').

[4] [2014] VSC 276 ('Zhuang').

[6] Zhuang (n 4) [21]-[23] (citations omitted).

[7] [2017] VSCA 70.

[9] [2006] VSCA 263; (2006) 16 VR 26 ('Ciantar').

[10] [2006] VSCA 86; (2006) 12 VR 401.

[12] [2024] VSCA 62R ('Lynn').

[14] Lynn (n 12) [114]-[116] (citations omitted).

[23] Trial transcript (n 1) 1894.10-13.