Doherty v The Queen [2019] VSCA 70

EVIDENCE - Whether siege evidence wrongly admitted - Whether probative value outweighed by prejudicial effect - Strong probative value - Prejudicial effect diminished by directions - Evidence Act 2008 s 137.

1 The applicant was convicted on a charge that he murdered Christopher Stevens at Seaford on 14 December 2015. He was sentenced, on that charge, to 21 years' imprisonment. At the time of the plea, he was also sentenced, on a number of charges contained in a separate indictment. The total effective sentence imposed on the applicant for all the offences was 25 years' imprisonment.

2 At the trial, the prosecution relied on four items of conduct of the applicant during the period of approximately 17 hours after he struck the blow that caused the death of Stevens. The fourth such item concerned the circumstances in which the applicant was involved in a 12 hour stand-off, in siege-like circumstances, in a house in Frankston, which culminated in his arrest by police at those premises. That event was described, in argument, as flight event number 4. At the trial, counsel for the applicant did not object to the first two items of post-offence conduct sought to be relied on by the prosecution. However, before the empanelment of the jury, he objected to the third and fourth items. The trial judge ruled that both of those pieces of evidence were admissible as incriminating conduct engaged in by the applicant after he had stabbed Stevens.[1]

3 The application for leave to appeal is directed solely to the ruling by the judge that evidence of the fourth flight event was admissible as incriminating conduct. Specifically, the applicant relies on two grounds in support of the application, namely:

Ground 1: The learned trial judge erred in ruling that the evidence of 'Flight Event 4' (the siege evidence) was, on the basis of the evidence as a whole, reasonably capable of being viewed by the jury as evidence of incriminating conduct.

Ground 2: The learned trial judge erred in failing to exclude the evidence of 'Flight Event 4' (the siege evidence) under s 137 Evidence Act.

4 The applicant and Stevens were friends. For a few days before 14 December 2015, Stevens had resided at the applicant's unit in Boonong Avenue, Seaford. On the morning of that day, an argument developed between the applicant and Stevens in the garage area of the unit. In the course of that argument, the applicant armed himself with a kitchen knife and stabbed Stevens in the right buttock. As a consequence, Stevens fled from the scene leaving a blood trail, and either walked or ran along Boonong Avenue to Carter Avenue, Seaford. The applicant jogged after him calling out his name.

5 When Stevens arrived at the door of 2-7 Carter Avenue, he was permitted to enter the unit by one of its occupants, Wesley Robinson, who knew both men. Stevens was then bleeding heavily, and he told Robinson that the applicant had stabbed him.

6 At that stage Stevens was agitated. He went to the kitchen and took possession of three differently sized kitchen knives. Shortly after that, the applicant arrived and entered through the unlocked door of the unit. He was carrying a large kitchen styled knife with a black handle and a serrated edge. The two men then engaged in an argument. Mr Robinson, in his evidence, described their demeanours as being 'quite aggressive'. He told them to go outside. As a result, both the applicant and Stevens walked to the outside of the unit under an awning. Mr Robinson was then still inside the unit. He opened the door, which had closed, and went outside and stood next to Stevens. When he did so, Stevens gave him his knives. Robinson went inside and put them on the little table, and then went back out the door.

7 At that stage, the applicant was still in possession of a knife. Stevens said something like 'do you think I'm going to let it lie'. Then, apparently without any warning, the applicant moved quickly towards Stevens and with a thrusting motion stabbed Stevens in the throat with the knife that he was holding. The applicant then made to stab him again, but Robinson pushed him on the shoulder, and told him 'to fuck off'. In response the applicant turned around walked away, and Robinson did not see him after that.

8 Having been stabbed, Stevens fell to the ground. He was conveyed to hospital, but he subsequently died. The cause of death was cerebral hypoxia and acute septal myocardial infarct, resulting from blood loss. The stab wound to the throat was approximately eight centimetres in depth.

9 The applicant then walked to his unit and drove away in his vehicle. About one and a half hours after the fatal events, at 11.12 am, Acting Detective Sergeant Daly, of Frankston CIU, telephoned the applicant's mobile telephone and spoke to the applicant. In the course of the conversation the applicant admitted to stabbing Stevens and said that he stabbed him because Stevens came at him with a knife. When Daly asked the applicant of his whereabouts, the applicant refused to disclose them, but he said that if Stevens lived he would come in, but if he died he would disappear, as he was 45 years of age and did not intend to do a 'stretch' for murder.

10 Subsequently, at about 2.15 pm, Acting Sergeant Olivia Wright, who was then in a marked police sedan, observed the applicant's vehicle in Frankston-Dandenong Road, Frankston North. The applicant's vehicle had its hazard lights on, and it was driving slightly erratically. Sergeant Wright drove behind the applicant's Ford Festiva vehicle. The applicant put his arm out the driver's side window, indicating for the police to stop, and was trying to tell the police not to come any closer. Meanwhile, Leading Senior Constable Amanda Keogh, who was driving in a separate police vehicle, positioned her vehicle next to the applicant's vehicle with her lights on. When the applicant saw Senior Constable Keogh's vehicle, he yelled, drove through red lights, and went over a bridge. Keogh followed him and initiated a pursuit, but it was ultimately terminated without success. That police pursuit of the applicant was described as 'flight event number 1'.

11 At about 2.30 pm, Senior Constable Watson, Detective Senior Constable Burgoyne, and Detective Senior Constable Keegan, who were in an unmarked police vehicle, observed the applicant's vehicle in Yuille Street, Frankston, coming towards them. They performed a U-turn and took up a position behind the vehicle. The applicant parked and got out of his vehicle outside a laundromat. Burgoyne and Watson exited their vehicle, with their firearms drawn, to arrest the applicant. When the applicant saw them, he jumped straight back into his vehicle, reversed it heavily out of the car park, and drove along Yuille Street on the incorrect side of the road. When the police re-entered their vehicle, they decided not to initiate any pursuit at that stage. That event was described, in pre-trial argument, as 'flight event number 2'.

12 The third event then occurred when, between 2.30 pm and 3.00 pm, the applicant drove his vehicle to premises at 65 Old Dandenong Road East, Frankston. There were a number of people present at the address, including Peter Heppeler. The applicant was known to Heppeler. The applicant entered the address holding a knife. He was yelling and screaming, and he seemed very anxious and agitated. He said 'I've just stabbed this guy eight or nine times, two death blows, one in the neck, one in so far. The cops will come and it's going to be on'. Mr Heppeler, in a statement that was read into evidence in the trial, said that the applicant then went into the kitchen, discarded his knife, and got two more knives. The first knife was a black handled thin bladed knife with a bow in it, with a ten inch blade, and the second was a heavier straight bladed knife also with a ten inch blade.

13 At about 5.30 pm, police attended at that address, and forced entry to the house. In response, the applicant fled the house through the rear door and into the garage area that was open. He then ran straight past a detective onto Dandenong Road East and continued to run. Detective Sergeant Daly, who was one of the police who pursued him, said that the applicant 'ran out of steam' about fifty to one hundred metres down another street. At that stage a police cordon was formed around him. Daly told the applicant to put down the knife and to surrender, but the applicant refused. Daly sprayed him with OC (oleoresin) spray, but it was ineffective. Police tried to persuade the applicant to surrender, and in doing so walked him back towards the house. At that stage he was surrounded by six or seven police members in a semi-circle. Eventually they ended up at the house at 65 Dandenong Road East. When they arrived there, the applicant ran back to the front veranda of the house and back into the house. As mentioned, those circumstances, up to the re-entry in the house by the applicant, were described as 'flight event number 3'.

14 At the trial, the applicant objected to the admissibility of that evidence, on the grounds that, under s 137 of the Evidence Act, the prejudicial effect of the evidence outweighed its probative value. The judge ruled that the evidence was admissible. That aspect of the judge's ruling is not the subject of this application.

15 What then followed was described as flight event number 4, which, as we have mentioned, was the subject of the two grounds sought to be relied on in support of the application for leave to appeal. In short, a siege occurred between 6.40 pm on 14 December, which continued through the night until the applicant was arrested at 7.10 am on 15 December. During that period, four occupants of the premises, including Heppeler, were held captive in the house against their will. The applicant was armed at all times. He threatened to stab police. A number of incidents occurred during the night which, because of their prejudicial nature, were not adduced in the evidence.

16 In the upshot, the evidence given at the trial concerning the siege was quite limited. The critical incident response team ('CIRT') arrived at the scene at 6.40 pm. Acting Sergeant Peta Probert stated that her team engaged in a conversation with the applicant, with the intention of achieving a peaceful resolution. When she first saw him, the applicant was holding a kitchen knife. During the discussions that ensued, he held either one or two knives. Those discussions continued until 12.45 am, when Senior Constable Lewicki and Senior Constable De Vos, of the CIRT, took over on the night shift.

17 Senior Constable Lewicki stated that after he took over the negotiations, he spoke with the applicant. On each occasion the applicant had knives on him. The discussions occurred on and off throughout the early hours of the morning. They continued until sometime after 7.00 am when the applicant was arrested.

18 In the course of being arrested, the applicant was wounded, as a result of which he was required to be admitted to the Alfred Hospital. He was interviewed at the hospital on 19 December 2015. In the interview, he stated that when he first stabbed Mr Stevens (in the buttocks), he acted in self-defence, because Stevens had said to him, in the course of the argument in the garage, 'you're off', meaning 'you're dead'. He agreed that when he followed Stevens from his home to Carter Avenue, he was carrying a knife. He said that he followed Stevens to the Carter Avenue unit because Stevens had left his house threatening him, and he needed to find out how genuine the threat was. He said that when they were at the Carter Avenue address, Stevens approached him carrying two knives in his hands. The applicant said that he felt threatened and that Stevens 'went towards an attack on me'. The applicant said that he 'responded with a defence ... I put up a defence'. He said 'I just needed to make sure that I could stop him from killing me ... I wanted to keep him at bay ... I just pushed it in far enough to keep him off me, that's all'. He said that he did not mean to kill Stevens but he was aware that his actions could kill him. In the course of the interview, the applicant also said that earlier in the day he had purchased some 'ice' for both himself and Stevens, and he thought that he himself had used ice during the day.

19 In pre-trial argument, counsel contended that the evidence relating to the fourth event was not capable of being viewed by the jury as evidence of incriminating conduct. He submitted that by the time that event occurred, the applicant had been involved in further serious criminal offending, particularly in his conduct in the course of the third event, so that the jury could not rationally conclude that the only reasonable explanation for the applicant's conduct in the fourth event was that he knew that he had intentionally killed Stevens and that he did not do so in self-defence. He submitted that at that stage the conduct of the applicant, during the fourth event, could also reasonably be considered to relate to the applicant's conduct towards the police, his false imprisonment of the individuals in the house in 65 Dandenong Road East, and his conduct in threatening both the occupants and the police during that time. Counsel further contended that, if the evidence were otherwise of probative value, it did not take the incriminating conduct, committed by the applicant, 'much further' than the evidence of the first three events. On the other hand, it was contended, the evidence as to the fourth event was prejudicial. He contended that the offending involved in the fourth event was 'serious offending'. Counsel made the following contention:

... the involvement in a siege where there's going to be details that there are four people for instance held hostage. I mean these are powerful words, things like being held hostage, that it's for that extended period of time, in the context where that already is that prejudice in relation to - if it's admitted about having been armed with a knife, being involved with a standoff with the police, it really becomes quite overwhelming and it will very easily cloud the jury's proper assessment of the evidence in relation to the earlier incident. The temptation for the jury will be to engage in the process of tendency reasoning whether conscious or subconscious.

20 The judge ruled that the evidence, of the fourth event constituted by the siege at 65 Dandenong Road East, Frankston, was highly probative of the prosecution case. In his ruling, his Honour stated:

In my view, the remaining 'siege' evidence is capable of being viewed by the jury as evidence of incriminating conduct. I consider a jury could rationally conclude that the only reasonable inference from the 'siege' conduct was that the accused behaved in this way because he knew he had intentionally stabbed Mr Stevens in the neck, causing him at least serious injury, and had not acted in self-defence when doing so. Put another way, the jury could conclude that if the accused did not flee and thereafter endeavour to avoid arrest he knew he would be implicated in at least a very serious assault. Mr Thomas submitted that as the misconduct of the accused mounted up the jury could not exclude that his conduct through the continuation of the siege was related to his other more recent misconduct, and not the stabbing episodes. Whilst I consider there is some faint theoretical possibility that the accused's continuation of the siege was related only to his more recent violent misconduct, in my view it would be well open to the jury to conclude that when he took four people hostage over hours this extraordinary conduct could only be explained by he having a belief that he was in very serious trouble arising from him stabbing a man in the neck previously.

Turning to the s 137 submission, I consider that the 'siege' evidence is powerfully probative to the prosecution case.

Holding four people hostage for several hours is capable of reflecting a determined and strong intention evinced by the accused to avoid apprehension. This, a jury may conclude, is entirely inconsistent with the accused holding a belief that he had earlier acted in innocent self-defence.[2]

21 The judge accepted that the admission of that evidence would create some risk of unfair prejudice to the applicant, and in particular there was a risk that the jury, in the absence of directions, would indulge in impermissible tendency reasoning. However, his Honour concluded that a strong direction, in respect of that reasoning, would reduce that risk 'to an acceptable level'. [3]

22 Counsel for the applicant submitted that, based on the evidence in the depositional material that was before the judge, the evidence relating to the siege was not reasonably capable of being viewed as incriminating conduct by the jury. Counsel submitted that there was compelling evidence that the applicant's behaviour, during the time of the siege, was quite irrational, and that he was being controlling and attention seeking, in a drug affected state, in order to manipulate police to provide him with more intoxicants.

23 In support of that submission counsel pointed to evidence in the depositions which she contended was as follows. The applicant made a number of statements to the police that indicated that he may have been suicidal. The date of the offending was the anniversary of the applicant's mother's death, and the applicant's relationship with his mother was raised in the course of conversations that he had with Daly. The applicant's behaviour was erratic, he alternated between reciting poetry and making threats. According to Sergeant Dineen, he wanted to be shot, and he was going to go out in a blaze of glory and have a book written about him.

24 In addition, the applicant did not sleep all night, he had used heroin at Heppeler's house before 9.00 pm, and he used methylamphetamine (ice) at Heppeler's house. He also insisted that alcohol be delivered to him, and shortly after its delivery he appeared to be less aggressive. Sergeant Daly considered that the applicant was visibly affected by ice. He made ultimatums when demanding the delivery to him of ice. Senior Constable Lewicki observed that the applicant would become aggressive if he did not get his own way, and it appeared to Lewicki that the applicant might have been 'coming down' from the effects of drugs. On one occasion, according to Lewicki, the applicant 'came out roughly around the deadline' and started to recite, for five minutes, some 'poetry' which sounded like a prison rhyme and then something that sounded like Shakespeare.

25 Based on that evidence, it was submitted that there was compelling evidence, contained in the depositions, that the applicant's conduct was completely irrational and wholly outside common human experience. Accordingly, it was submitted, based on those materials, it could not be concluded that the only reasonable explanation for the applicant's conduct was of consciousness that when he stabbed Stevens, he intended thereby to kill him or cause him really serious injury, and that he knew that he was not then acting in self-defence.

26 Counsel for the applicant submitted that under s 20(1)(b) of the Jury Directions Act 2015, the trial judge was required to determine the admissibility of the incriminating conduct evidence, sought to be relied on by the prosecution, based on all of the evidence, and not, just, on the evidence that was intended to be adduced in the trial. Thus, counsel submitted that in determining the admissibility of the incriminating conduct evidence, relied on by the prosecution in respect of the fourth event, the judge ought to have, but did not, take into account the evidence contained in the depositions which pointed to a possible alternative explanation for the applicant's conduct. That alternative explanation was, that at the time of the siege he was acting entirely irrationally. Counsel contended that it is impermissible to render incriminating conduct evidence admissible by editing out that evidence which would make the incriminating conduct evidence, sought to be relied upon, inadmissible.

27 In support of ground 2, counsel for the applicant contended, first, that although the evidence as to the fourth event was substantially edited, it nevertheless contained a number of prejudicial aspects. In particular, two CIRT witnesses gave evidence, thus conveying to the jury that the siege could only have been discontinued by reason of the intervention of that team. In addition, at the trial, the video recording of the record of interview conducted of the applicant was admitted into evidence. The applicant was then an inpatient at the Alfred Hospital. The video depicted the applicant connected to oxygen, looking fatigued, and in pain. That evidence would have conveyed to the jury that the termination of the siege involved the use of force by the CIRT. Further, the repeated references in the evidence to the use of knives in the siege added to the prejudicial content of it. Further, of itself, the fact that a siege took place over a period of 13 hours was prejudicial.

28 In addition, it was contended, the admission of the evidence placed the applicant in the position where, in order to provide an alternative explanation for his conduct, he either had to adduce evidence of his irrational conduct on the evening in question, which would have created incurable prejudice, or have the jury make an evaluation based on inadequate evidence which did not properly reveal the alternative explanation for his conduct. In that way, it was submitted, the admission of the evidence, of the siege event, resulted in unfair prejudice to the applicant.

29 In response, counsel for the respondent pointed out that at trial, the submission made on behalf of the applicant was based on the proposition that because there were intervening offences between the stabbing and the siege, the jury could not conclude that the evidence of siege conduct was evidence of incriminating conduct in relation to the stabbing. Counsel for the applicant, at trial, did not submit that, as a result of the depositional material, an alternative explanation for the applicant's conduct in the siege might be available, namely, that the applicant at that time was acting in an entirely irrational state. Counsel for the respondent contended that the course taken by counsel, at trial, was an informed and deliberate forensic choice which, in the circumstances, was reasonable. In those circumstances, it was submitted, it could not be maintained that the judge erred in determining the admissibility of the evidence relating to the fourth event in the context of the alternative explanation then relied on by counsel for the applicant.

30 In respect of ground 2, counsel submitted that the judge was correct to find that the evidence relating to the fourth event was powerfully probative of the prosecution case. Counsel contended that the judge was correct to postulate that the evidence of the siege was entirely inconsistent with the applicant holding a belief that he had acted innocently in self-defence when he stabbed Stevens. Counsel for the respondent accepted that there was some prejudice to the applicant arising out of the evidence relating to the siege. However, that prejudice was limited. None of the hostages in the siege were called to give evidence. The evidence as to the siege was limited. At the trial, the judge gave clear directions to the jury, both after opening addresses, and in his charge, to ensure that the jury did not indulge in impermissible tendency reasoning.

31 Counsel for the respondent further contended that the admission of the evidence relating to the siege did not create a dilemma for trial counsel. The most persuasive explanation, for the applicant's conduct in the siege, was that which was argued in final address to the jury, namely that it was due to a mixture of panic and the use of drugs by the applicant at the time. The alternative hypothesis - that the applicant was acting irrationally - would not have assisted the defence case, and would have undermined the prospect that the jury might consider that the hypothesis of panic and drugs was reasonably open in the circumstances. In particular, it was submitted, at the trial the principal issue was whether the prosecution had proven that the applicant did not act in self-defence. In that context, evidence of irrational conduct by the applicant would have very much undermined his prospects of success on that issue.

32 Section 20(1)(b) of the Jury Directions Act provides that the prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless the trial judge determines that, on the basis of the evidence as a whole, the evidence is reasonably capable of being viewed by the jury as evidence of incriminating conduct. Section 21 prescribes the directions which the judge must give to the jury in relation to evidence of incriminating conduct that is admitted in a trial. Section 21(1)(a) provides that the judge must direct the jury that it may only treat the evidence as evidence of incriminating conduct if it concludes that the conduct occurred, and that 'the only reasonable explanation of the conduct' is that the accused held the relevant belief, namely, 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 that offence.

33 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.[4]

34 As noted, counsel for the applicant contended that, based on the depositional material, it could not be rationally concluded that the only reasonable explanation for the applicant's conduct in the siege was that contended for by the prosecution. For, it was submitted, the jury, acting rationally, could not exclude an alternative hypothesis as being reasonably open, namely, that the applicant at that time was acting entirely irrationally, and that his conduct was not the result of a belief by him that he had intentionally killed Stevens and that he had not done so in lawful self-defence.

35 As we have mentioned, that submission was not advanced, at all, before the trial judge by counsel then appearing for the applicant in the trial. Ground 1 of the application is that the judge erred in ruling that the evidence of the siege was reasonably capable of being viewed by the jury as evidence of incriminating conduct. Logically, the conclusion of the judge could not be impugned for failing to take into account material that was not put before his Honour and relied on in support of the alternative hypothesis now contended for.

36 Further, the submission made by counsel for the applicant was based on the premises that, in determining whether the evidence of the siege was reasonably capable of being regarded by the jury as evidence of incriminating conduct, the judge was required to consider and take into account, not only the evidence that was intended to be adduced before the jury, but all the depositional material.

37 There is no authority that directly supports that proposition. It is also, we consider, not consistent with the proper construction of s 20 and s 21 of the Jury Directions Act. Section 20 requires the judge to determine the capacity of 'the evidence' of post-offence conduct to be reasonably considered by the jury as incriminating conduct. Section 21 mandates the direction that must be given by the judge to the jury concerning that 'evidence'. It is clear, from those provisions, that the judge is required to make the relevant determination on the basis that the evidence that is to be adduced, or has been adduced at trial. Section 20 is not concerned, directly, with the admissibility of evidence; rather, it is concerned with the use to which the evidence might be put. Of course, if the evidence could only be relevant as evidence of incriminating conduct, it would not be admitted in the trial, unless it could be reasonably viewed by the jury as evidence of such conduct. However, the focus of the provisions is on the evidence that has been adduced, or is to be adduced, at trial.

38 In that context, it may be remarked that, not uncommonly, evidence of post-offence conduct by an alleged offender is adduced without a determination first being made as to whether it is capable of constituting evidence of incriminating conduct, where it may be otherwise relevant, for example, because it provides a context to what ensued after the commission of the offence. In those cases, the determination by the judge, whether the prosecution might be permitted to rely on such evidence as evidence of incriminating conduct, may be deferred until a stage when the trial is well advanced, and often at the conclusion of evidence. In such a case, an assessment, as to whether the evidence may be properly regarded as incriminating conduct, may not be able to be made until all the evidence has been adduced.

39 Nevertheless, if there were substance in the proposition now contended for by counsel for the applicant, we would grant leave to amend ground 1 to reflect the content of that submission. However, and assuming (but not accepting) that the material now relied on by counsel for the applicant should be taken into account, we are not persuaded that, as a consequence, the evidence as to the siege was not admissible as evidence of incriminating conduct.

40 As we have stated, in order that the siege evidence be inadmissible, it must be demonstrated that, if all of the evidence relating to the siege were before the jury - including that of the applicant's irrational and erratic conduct in the course of the siege - the jury could not have reasonably excluded, as a possible explanation for his conduct, that the applicant was acting in an entirely irrational state, so that he was not then maintaining the siege because he believed that he had intentionally killed Stevens in circumstances in which he was not acting in self-defence.

41 In our view, the material now relied upon is entirely insufficient to establish that proposition. In other words, we are not persuaded that, if the depositional evidence now relied on had been put before it, the jury could not reasonably conclude that, notwithstanding the overtly irrational aspects of the applicant's conduct during the siege, nevertheless the only reasonable explanation for his maintenance of the siege was that he believed that when he stabbed Stevens he had intended to kill him or cause him really serious injury, and he then believed that he was not acting in lawful self-defence.

42 In considering the submission by counsel for the applicant, it is important that the evidence relating to the siege not be viewed in entire isolation from the evidence of the events that preceded it.

43 Each of the flight events, relied on by the prosecution, were, of course, precipitated by the incident in which the applicant inflicted a deep knife wound to the throat of Stevens. In his subsequent interview with the police, he stated that his intent was not to kill Stevens, but he went on to say: '... I didn't intend to kill him, no, I didn't, but I was aware that that could kill him, absolutely. Any knife wound can kill ya. Absolutely'.

44 It will be recalled that, about one and one-half hours after the applicant had stabbed Stevens, Detective Sergeant Daly made contact with him on the telephone. The applicant then told Daly that if Stevens survived he would 'come in' (in other words surrender himself) but if Stevens died, he would disappear, as he did not intend to serve a term of imprisonment for murder. In other words, and significantly, at that stage the applicant made it clear that he did not intend to surrender himself to the police because he did not wish to serve a term of imprisonment for murder.

45 That evidence was clearly significant. It illustrated the applicant's state of mind, particularly during the events which followed over the ensuing hours. During that period, the applicant twice fled police pursuit. On one occasion, when he exited his vehicle and was surrounded by police holding firearms, he re-entered his vehicle, and drove off hastily and erratically. Those two events of flight were referred to as events 1 and 2. It was - correctly - accepted at trial that that conduct by the applicant was reasonably capable of being viewed by a jury as evidence of incriminating conduct. In other words, the jury was entitled to conclude that the only reasonable explanation for the applicant's flight on each of those two occasions was that he knew that he had stabbed Stevens with murderous intent, and that he knew that he was not acting in lawful self-defence when he did so.

46 The applicant then made his way to the premises at 65 Old Dandenong Road East. When he entered those premises, he told Mr Heppeler that he had stabbed Stevens (eight or nine times), the police were coming, and that it was 'going to be on'. The jury was entitled to infer - indeed the only reasonable inference was - that the applicant had fled to those premises as a refuge from arrest by the police.

47 The third event - the standoff with the police in the street - then followed. As we have related, that event involved five or six police officers surrounding the applicant, who was holding a knife, and endeavouring to 'herd' him into a position in which he could be arrested. The applicant resisted those attempts and then made his way back inside the house from which he had earlier fled as a refuge from the police. At trial - and on this application - it was accepted that that conduct by the applicant was capable of being used by the jury as incriminating conduct. Thus, again, the jury was entitled to conclude that the only reasonable explanation for the applicant's conduct, at that stage, was that he resisted arrest by the police, and returned inside the premises at 65 Old Dandenong Road East, to avoid arrest, because he then knew that he had killed Stevens with murderous intent, and that in doing so he had not been acting in lawful self-defence.

48 It is in that context that the siege commenced. It could not sensibly be suggested that at the commencement of the siege, suddenly, another possible explanation for the siege intervened, which the jury could not exclude, namely, the advent of some irrational conduct by the applicant.

49 Certainly, in the intervening thirteen hours, the applicant indulged in a number of aspects of irrational and erratic conduct which we have described, and which were set out in the depositions. However, even taking that evidence at its highest, we are not persuaded that a jury could not rationally conclude (as the only reasonable inference that was available) that, notwithstanding the erratic quality of the applicant's behaviour as it evolved during the night, nevertheless his maintenance of the siege arose out of the same motivation that had actuated his conduct in the first three events, namely, his belief that he had killed Stevens with murderous intent and that he had not done so in lawful self-defence.

50 In that respect, two aspects of the evidence, at that stage, are particularly relevant. First, there were two statements made by the applicant, to police officers, which clearly reflected the same motivation as that which had actuated the first three flight events. In the upshot that evidence was not admitted by the judge. However, on the basis that the judge ought to have taken into account the whole of the depositional material, then that evidence, also, ought to be taken into account. In that connection, we refer, first, to the evidence of Detective Sergeant Daly. In his statement, Daly said that after the applicant had re-entered the premises at Old Dandenong Road East, he continued to speak to the applicant. In the course of doing so, the applicant stated that he was 45 years of age, and that 'he wasn't doing a stretch for stabbing Chris'. In the same vein, a member of the CIRT who attended the scene, Senior Constable Dinneen, in his statement, said that later in the evening the applicant said 'that he wasn't going back to jail for ten to fifteen years for stabbing the male earlier in the day, who he believed deserved it cause he crossed him and was a dog'.

51 In addition, while the evidence in the depositions, to which counsel for the applicant has referred, revealed a number of irrational and erratic aspects to the applicant's conduct during the night of the siege, it is clear, from the same evidence, that the applicant also experienced periods of calm and rationality. In other words, he was not consistently entirely irrational during the whole evening.

52 Thus, Detective Senior Constable Dinneen stated that the applicant's demeanour would change very quickly, but that each time he went into a 'fit of rage', shortly afterwards he would return and apologise for his aggression 'as he knew police were only doing their job'. Senior Constable Probert made a similar observation in her statement, namely that the applicant was very unpredictable. She said:

At times he was yelling at me stating that I had no idea what I was doing and then he returned a few seconds later apologising for being rude. He had a good understanding of the negotiation process and stated that he had a degree or similar in psychology and would try and analyse behaviours. A number of times he said he was emotionally retarded.

53 Senior Constable Lewicki who commenced on the night shift at 11.00 pm, observed as follows:

Throughout the night, (the applicant) would come out and go back in the house. The conversation was not one long conversation. Sometimes he would come out and speak to me and I wouldn't get a word in. I didn't feel like we were getting very far with him, I believe (the applicant) would think he was in control of the conversation. He seemed to make sense and seemed intelligent. Conversations would roll off his tongue easily.

54 When that evidence is taken into account, and assuming that the whole of the evidence concerning the siege, that was contained in the depositions, was put before a jury, we consider that that jury could rationally conclude that the hypothesis, relied on by the applicant, for the maintenance by the applicant of the siege, was not reasonably open in the circumstances. In other words, it would be open to the jury to reject, as a reasonable explanation for the applicant's conduct, that the reason he maintained the siege was solely because he was acting irrationally. Put another way, in our view, taking that evidence into account, it would be open to a jury to rationally conclude that the only reasonable explanation, for the maintenance by the applicant of the siege at the premises at 65 Old Dandenong Road East for a period of thirteen hours, was that he wished to avoid arrest, because he knew that he had stabbed Stevens with the intent of killing him or causing him really serious injury, and that he knew that in doing so he had not acted in lawful self-defence.

55 For those reasons, we do not accept the submissions made on behalf of the applicant in support of ground 1. It follows that leave to appeal on ground 1 should be refused.

56 As we have noted, the applicant relies, in effect, on two arguments in support of the submission that the judge should have excluded the siege evidence under s 137 of the Evidence Act 2008, on the grounds that the probative value of that evidence was outweighed by the danger of unfair prejudice to the applicant.

57 First, the applicant's counsel contended that the judge overstated the potential probative value of the evidence, and, conversely, failed to take into account the prejudicial aspects of it. We do not accept that submission. In our view, the judge was correct in characterising the evidence, relating to the siege, as having powerful probative value. The maintenance by the applicant of a siege, involving holding four people hostage, while surrounded by police, over a period of some thirteen hours, was capable of being viewed as reflecting a consciousness by the applicant that he was in very great trouble, because of what he knew he had done in stabbing Stevens. It might be one matter to have fled the police when first approached by them. On the other hand, to hold police at bay, using four hostages, over a protracted period, manifested a powerful determination by the applicant, which the jury could properly consider reflected his understanding of the legal consequences that would ensue because of his unlawful conduct in intentionally killing Stevens while not acting in self-defence. As such, as the judge correctly identified, the evidence was of strong probative value.

58 Certainly the evidence, even in its censored state, was capable of resulting in prejudice to the applicant. Putting to one side the evidence concerning the applicant's physical state during the record of interview, in the absence of appropriate directions by the judge, the other evidence might have led the jury to engage in impermissible tendency reasoning. However, at the conclusion of counsel's openings to the jury, the judge outlined to the jury the purpose for which the post-offence conduct was to be adduced at the trial. In doing so, his Honour gave the jury a clear and specific direction that it must not engage in 'propensity or tendency' reasoning, by considering that because the applicant acted in that way he was the sort of person who was likely to commit murder, or unlikely to have acted in self-defence.

59 Subsequently, in his charge to the jury, the judge gave careful and detailed directions as to how it was entitled to use the post-offence conduct by the applicant. In doing so, his Honour again directed the jury, in clear terms, that it was impermissible for it to engage in such tendency reasoning. The directions so given by the judge were sufficient to substantially offset the prejudice that might otherwise have accrued to the applicant as a result of the admission of the post-offence conduct, including the evidence relating to the siege.

60 We note that in this context counsel for the applicant referred to the fact that the audio visual recording of the record of interview was admitted into evidence. However, at the trial, counsel for the applicant did not resist the admission of that evidence. Counsel could have, but did not, seek to have the evidence of the interview restricted to the audio recording, without any vision, being admitted. It is quite possible, if not probable, that, as counsel for the respondent has contended, counsel for the applicant made a legitimate forensic decision to have the audio visual recording of the interview admitted, because it depicted, in the applicant's favour, his demeanour when he said to the interviewer that at the time that he stabbed Stevens, he was acting in self-defence.

61 The second unfair aspect of prejudice, relied on in support of ground 2, is that the trial judge admitted the siege evidence as incriminating conduct, in circumstances in which the applicant could not adduce evidence of the most likely explanation for that conduct, namely, that he had been acting in an entirely irrational state, because that evidence would result in unfair prejudice to him. Thus, it was contended that the admission of the siege evidence as incriminating conduct placed the applicant's counsel on the horns of an impossible dilemma at trial.

62 That submission may not be accepted for three reasons. First, counsel for the applicant, at trial, did not advance any such proposition to the judge. If counsel felt at that stage that he was being placed in such a position of a dilemma, as now contended for, it might be expected that counsel would have so submitted to the judge.

63 Secondly, and more substantively, it is understandable why counsel for the applicant did not raise the matter at trial. In his final address, counsel sought to rely on an alternative explanation, for the post-offence conduct (including the siege evidence), that, in our view, was potentially more persuasive than the alternative explanation now sought to be relied on, namely, that of irrationality. In a cogent and eloquent address, counsel described to the jury how the feeling of panic can set in. He said:

When people have fear, real fear ... they can panic and when they panic they start making bad decisions and those bad decisions can turn into a spiral where things get worse and worse and worse and worse. Mix drugs in with fear and panic and you get the sort of behaviour that you've heard about in the evidence, unchallenged.

64 Counsel then put to the jury that none of the conduct engaged in by the applicant took the matters any further. He stated:

If he fears he's not going to be believed, or he fears that despite having acted in self-defence, he might be found guilty, a chasm opens up. You just think about it for a moment. This is a hypothetical. Mr Doherty stabbed Stevens, he stabs him in self-defence, looks like Stevens is going to die. Think about it for your own life for just a moment. The second that happens, your entire life looks like it's going to be wiped out. Your whole life, everything. Everything you've worked for, everything. Massive chasm opens up and is understandable that that fear of your whole life being swallowed up and destroyed might cause someone to, to use the vernacular, freak out, to panic. If it's combined with drugs, then it really becomes just a cascade of fear and a spiral ... of Mr Doherty digging a hole for himself.

65 If there were a competing hypothesis, consistent with innocence, available in respect of the incriminating conduct, it was that which was put by counsel for the applicant to the jury at trial. Taking into account the evidence contained in the depositions, to which we have already referred, the other explanation now sought to be relied on, in support of the application for leave to appeal - irrationality - would, we consider, in the circumstances be much weaker. If, hypothetically, it had been put before the jury (disregarding its prejudicial aspects), we very much doubt that it would have assisted the applicant's case. If anything, it would have weighed against the force of the alternative hypothesis relied upon in the trial by counsel for the applicant, to which we have just referred.

66 Further, if counsel for the applicant had perceived, at trial, that there was anything to be gained from aspects of the conduct of the applicant during the siege, in support of any competing hypothesis consistent with innocence, then it might be expected that counsel would have sought to have had that evidence admitted. Certainly, counsel clearly made a forensic decision to have admitted into evidence admissions made by the applicant, in his interview, that on the morning of the incident he purchased methylamphetamine for himself and Stevens, that he had used that drug that morning, and that during the siege incident at Peter Heppeler's place he had also used drugs. Evidence was admitted in the trial of Mr Gerostamoulos, the chief toxicologist at the Victoria Institute of Forensic Medicine, as to the content of methylamphetamine detected in the applicant's blood after his arrest. Clearly a forensic decision was taken by counsel that that evidence ought to be admitted, without objection, so as to enhance the explanation for the applicant's post-offence conduct that was advanced before the jury.

67 On the other hand, and significantly, counsel did not seek to have admitted into evidence, in an anodyne form, evidence as to aspects of the applicant's erratic conduct during the siege, including his recitation of poetry, his erratic and irate behaviour, the fact that he repeated himself, the fact that he changed his demeanour quickly from rage to being apologetic, and the fact that he made grandiose claims. If counsel had perceived that that evidence might have assisted in resisting the inference, that the prosecution sought to be drawn from the siege evidence, that evidence could have been adduced in a form which was not unduly prejudicial to the applicant. In that way, we do not accept that the applicant was necessarily placed on the horns of the dilemma now contended for by counsel on his behalf.

68 For those reasons, the judge did not err in not excluding the evidence in relation to the siege under s 137 of the Evidence Act.

69 For the foregoing reasons the applicant has failed to make out either ground of the application for leave to appeal. Accordingly, the application for leave to appeal against conviction must be refused.

[1] R v Doherty, Unreported, T Forrest J, 28 April 2017 ('the Ruling').

[4] DPP v Zhuang [2014] VSC 276, [21]-[23] (Kaye J); DPP v Scriven [Ruling No 4] [2015] VSC 220, [19]-[20] (Maxwell P).