DPP v Lynn [2024] VSCA 62

1. The applicant made plain that it is submitted that the instances of less extreme conduct are, when combined with the more extreme instances, capable of evidencing a belief that the respondent committed each murder. It is emphasised that the conduct should not be viewed in a piecemeal fashion. Rather, each piece of conduct is 'part and parcel' of the intensive and protracted effort by the respondent to destroy evidence or avoid detection or both. The applicant argued it was 'nonsensical' to limit use of the evidence of conduct as motivated only by a lesser crime than murder. Any limitations to the use of the evidence can be addressed through submissions and judicial direction.
2. The applicant argues that in his Reasons the judge placed considerable weight on the account of the respondent in the record of interview. It is submitted that assessment of that account is a matter for the jury and not the judge and that, in particular, the judge should not reason, contrary to what the respondent said in his interview, that he 'may well have believed' certain things. The applicant submits that at no time did the respondent describe any intentional unlawful or dangerous act. By terming the prosecution case 'a notion' and 'far-fetched', the judge has demonstrated an apparent acceptance of what the respondent said and has failed to properly consider what is reasonably open to a jury on the whole of the evidence.
3. Further to the submission that there is evidence as to the circumstances of the deaths of the deceased, the applicant argues that there is evidence in the interview of the respondent's anger towards Mr Hill about the use of his drone and that is evidence of a relationship between them. It should be a matter for the jury, rather than the judge, to determine whether, on the whole of the evidence, the respondent murdered Mr Hill in anger. As in Baden-Clay, the respondent's motive must be considered in the context of the post-offence concealment and other conduct. In any event, it is possible, where there is evidence of extreme post-offence conduct, that that conduct will, by itself, be capable of proving murderous intent.[61]
4. The applicant submits that the High Court in Baden-Clay adopted Ciantar. Ciantar emphasised that where conduct alleged to be incriminating conduct is considered in the context of all the evidence in the trial, it will be in few cases that the conduct might only be considered with respect to a lesser offence. Rulings of single judges in other murder trials are, necessarily, fact dependent and of limited assistance. The jury is the constitutional tribunal for deciding issues of fact. The judge should not usurp that role.
5. As to the judge's finding that the respondent would have an 'understandable concern' that he might not be believed that both deaths occurred accidentally if he had come forward immediately and explained what happened, that matter should be resolved by a jury. It is for a jury to determine whether the extreme measures taken by the respondent and the reasons he provided for them are 'understandable'. Directions may be given as to reasons other than a belief in murderous intent as to why he might have done so.
6. As to the complicating factor of there being two charges of murder, the applicant again submits that the judge erred in stating that there are no known circumstances of the killings and that the respondent's account of the death of Mrs Clay is 'consistent with the forensic evidence'. The ballistics testing showed no more than that a shot could have been fired from the front of the Landcruiser through a side mirror and towards a person behind the mirror. That does not mean that the respondent's version is plausible. A jury ought to be able to consider this issue in the context of the respondent's explanations overall, including why and how he destroyed the mirror. Further, the 'absence' of forensic evidence is not capable of being used to bolster the account given by the respondent of Mr Hill's death. It was he who did everything possible, including destroying all potential forensic evidence and Mr Hill's remains, to conceal the death and how it happened.
7. To the extent that the trial judge made references to it being 'safer' and 'more appropriate' to allow the jury to use the post-offence conduct only as to unlawful killing because it will avoid a 'miscarriage of justice', the applicant submits that such considerations have no role to play in the s 20(1)(b) determination. Further, such references point to the judge effectively assuming the jury's role.
8. As to the judge's concern that the post-offence conduct would be used to fill a gap in the prosecution case on murderous intent, the applicant submits that there is no distinction in the Evidence Act 2008 between an implied admission and an express admission or confession. Unless recorded, the probative value of an express admission is dependent upon the credibility and reliability of a witness. No such issues arise with the conduct in question in this case. The applicant submits that it is unclear why the judge is concerned that the post-offence conduct might be used with other evidence to support an inference of guilt when that is the very essence of a circumstantial case. In giving effect to that concern the trial judge underestimates the ability of a jury to understand and follow directions.

1. The respondent submitted that the applicant's contention that the judge acted on his own acceptance of the respondent's version of events should be rejected. If the judge had, the prosecution would not have been permitted to rely on the post-offence conduct as incriminating conduct of even unlawful killing.
2. The applicant's contention that the judge usurped the role of the jury should also be rejected. Relying on Scriven,[62] the respondent submitted that the judge was obliged to anticipate how a rational jury would undertake the exercise of assessing competing explanations. The parties were agreed that the judge should accept that Scriven correctly articulated the applicable principles. In oral submissions counsel for the respondent argued that Scriven 'amplified' Ciantar in a post-JDA environment.
3. The respondent submitted that the use of post-offence conduct as incriminating conduct as to murderous intent as opposed to unlawful killing was dependent upon the interrelationship between the evidence of post-offence conduct and the other evidence in the case. In this regard, the judge's analysis of Tan, Ristevski, Butler and Baden-Clay was correct.
4. The respondent disputes that his account in the record of interview demonstrates he was angry with Mr Hill. Rather, it demonstrates he was merely annoyed. That state of mind is inconsistent with the formation of murderous intent. Further, any evidence of 'relationship' between the respondent and the deceased is very different from relationship evidence of a more intimate or ongoing kind. The respondent submits that it is 'well open' to the judge to comment that the idea that the respondent would just up and murder two complete strangers is far-fetched in the extreme.
5. The respondent notes that in the course of argument the prosecutor told the judge that it was 'likely' that Mr Hill had been stabbed and not shot. In those circumstances the judge was correct to find that his death might be above accident but below murder. That is a point of distinction with Baden-Clay, where the accused denied any sort of physical confrontation or struggle at all.
6. The respondent argues that the judge was entitled to consider that the 'extreme' behaviour had occurred after two deaths. In the interview the respondent spoke of his concern of being implicated in two deaths. In Ristevski the judge noted that the accused would have believed that the unintended but unlawful death of his wife - that is a single death - involved grave wrongdoing with grave consequences.
7. Further, it is submitted that the judge was entitled to consider the potential difficulty of adequately directing the jury. That consideration was part of the judge's obligation to ensure a fair trial and did not underestimate the ability of a jury.

1. Before turning to an analysis of the issues raised, we note that although the Court asked the parties in light of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore[63] to address the issue of the standard of interlocutory appellate review applicable to a s 20(1)(b) JDA decision, it is, in this case, unnecessary to decide. As will be explained, the judge erred in in his construction of s 20(1)(b). Accordingly, the result would be the same whether this Court applied House v The King[64] principles or the Warren v Coombes[65] 'correctness' standard.

1. In s 18 of the JDA 'conduct' is defined to mean 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' is defined to mean conduct that amounts to an implied admission by the accused of having committed an offence charged or an element of an offence charged or which negates a defence to an offence charged. An 'offence charged' is defined to include any alternative offences.
2. Section 19 of the JDA imposes a requirement on the prosecution to provide notice of evidence it proposes to rely on as evidence of incriminating conduct.
3. Section 20 of the JDA is in the following terms.

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

(a) the prosecution has given notice in accordance with section 19; and

(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.

A trial judge may make a determination under paragraph (b) even where the evidence of conduct relates only to an alternative offence.

(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.

1. What follows are two directions. One, in s 21, is mandatory and the other, in s 22, may be given at the request of defence counsel.[66] They are in the following terms.

Mandatory direction on use of evidence of incriminating conduct

(1) If the prosecution relies on 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-

(i) the conduct occurred; and

(ii) 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.

(2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.

Section 6 provides that a trial judge need not use any particular form of words in giving a direction to the jury. For example, in relation to the direction referred to in subsection (1)(a)(ii), if the evidence concerns an element of an offence, the trial judge could refer to "knew" rather than "believed" to better describe what the incriminating conduct, if accepted, may prove.

If the trial judge gives, or proposes to give, a direction under section 21, defence counsel may request under section 12 that the trial judge also direct the jury that-

(a) there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and

(b) the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and

(c) even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

1. 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.[67] 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.
2. 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.
3. 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).
4. The question for a trial judge has been formulated in several ways.
5. Under the common law, the five judge Court in Ciantar said:

[i]n all cases, it will be for the judge to determine whether evidence of post-offence conduct, taken in conjunction with any specified acts, facts and circumstances, is capable of constituting evidence of consciousness of guilt for the purposes of an issue.[68]

1. In DPP v Zhuang (Ruling)[69] Kaye JA, expressly relying upon Ciantar, said:

... 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.[70]

1. In Scriven, Maxwell P followed Zhuang and said:

... the question for the judge to determine under s 24(1)(b)[71] is whether, on the whole of the evidence, it would be reasonably open to the jury to conclude that the conduct in question could only be explained by the accused's having had the relevant belief in his own guilt. The judge is assessing - as best he/she can - what the jury, acting rationally, would be entitled to make of the conduct, viewed in the context of all of the evidence.[72]

1. 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, [73] it accepts or rejects the reasonable possibility of the non-incriminating or alternative explanation.
2. The mandatory s 21(1)(a) direction requires the jury to reject any other reasonable non-incriminating explanation before it may find that the only reasonable explanation for the conduct is the implied admission of guilt to the offence charged.
3. It follows that where the issue is whether the conduct is reasonably explicable by a belief in guilt of the offence charged or of a lesser offence, it will not often be the case that s 20(1)(b) requires the judge to determine that the jury could exclude the lesser inference. In Ciantar, which concerned the offence of culpable driving causing death, the Court said:

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 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. And, to the extent that Heyes implies the contrary, in our view it should not be followed.[74]

1. Later, with respect to alternative hypotheses between murder and manslaughter, the Court said:

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.

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.

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.[75]

1. In Baden-Clay, the High Court emphasised the same observations made by Major J in White relied upon in Ciantar:

In R v White, in the Supreme Court of Canada, Major J said:

'As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role.'

In R v White, Major J went on to say that there may be cases where post-offence conduct, such as the accused's flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence that it might be found by the jury to be more consistent with the more serious offence charged. There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said: 'The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute'.[76]

1. Hence s 20(1)(b) means that the trial judge must make a determination, based on the whole of the evidence, that the conduct evidence was such that the jury could rationally conclude that the only reasonable explanation for it was that the accused held the belief that he or she committed the offence charged. That the jury might not so conclude, because the conduct evidence might be reasonably explicable of a belief that the accused had committed a different offence (or for any other reason) is, generally, a matter for them.

1. The respondent's submission that Ciantar has been 'amplified' by the JDA and the post-JDA decisions - Scriven in particular - must be rejected. Both Zhuang and Scriven followed Ciantar. Ciantar found expression in ss 20 and 21 of the JDA. Appellate common law authorities remain good law. Section 20(1)(b) of the JDA is a broad filter. 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.
2. As part of the process to determine whether the post-offence conduct was reasonably explicable by a belief in murder, the judge considered other reasonable explanations, including manslaughter and accidental death. The judge found all explanations to be reasonably open, but, placing emphasis on the fact that 'the precise circumstances of the killings are not known' and '[n]or is the motivation',[77] held that the explanations short of a belief in murder were - in effect - 'so inherently likely' or 'intractably' neutral'[78] that he refused to leave the conduct to the jury as evidence capable of constituting an implied admission of guilt as to murder. That is, the judge held that the jury could not, in this case, rationally reject as an explanation for the conduct a belief by the respondent that he was guilty of two counts of manslaughter. On this basis the judge took away from the jury the task of deciding whether or not a belief in manslaughter was a reasonably possible explanation for the conduct. By doing so the judge rendered the s 21 mandatory direction redundant and applied too fine a filter to the s 20(1)(b) determination.
3. Thus the judge said with respect to all of the evidence of conduct other than the second killing:

... even if [the respondent's] account of the events that led to the deaths is rejected wholly or in part, and is put to one side, I am satisfied that a jury could not reasonably exclude that he engaged in the conduct in question in the belief that one or both of the killings were committed without murderous intent.[79]

... while a reasonable jury would be entitled to think that one possible reason [the respondent] engaged in the impugned conduct - including his treatment of the bodies - is because he believed he had committed murder, in the absence of evidence of the circumstances surrounding the deceased's deaths, I cannot see how a reasonable jury could exclude the inference that he believed he had committed an offence or offences short of murder.[80]

1. As this Court held in Ciantar, where evidence of belief in guilt of the charged offence, which by itself is equally consistent with a belief in guilt of a lesser offence (such as manslaughter), is capable in conjunction with other evidence of sustaining an inference that the accused believed himself to be guilty of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.
2. In this case, for the reasons that follow, there was some evidence of the circumstances surrounding the deaths. The existence of that evidence, in conjunction with the evidence of post-offence conduct, meant that must be left to the jury to determine whether the post-offence conduct demonstrated a belief in the accused that he was guilty of murder.
3. This case is not one of the rare circumstances in which alternative explanations or hypotheses should not be left to the jury. Considering the evidence as a whole and applying collective human experience, a jury could conclude that the very extreme nature of the post-offence conduct is not reasonably explicable other than as an implied admission of guilt to the murder of one or both of the deceased. That is, a jury could reject both manslaughter and accidental killing as reasonable explanations for both charges of murder.

1. As we have said there is some evidence of the circumstances of the deaths of Mrs Clay and Mr Hill. A jury could accept parts of the respondent's 24 November 2021 record of interview and reject others. That account in conjunction with forensic evidence is productive of certain basal facts. They include:

(a) Both deaths occurred on the same evening in Bucks Camp, a remote location.

(b) The respondent was present.

(c) Apart from Mrs Clay and Mr Hill, no one else was present.

(d) When they arrived at Bucks Camp neither Mr Hill nor Mrs Clay possessed any firearms.

(e) The respondent had been hunting and had firearms and ammunition in his car.

(f) The respondent and Mr Hill were in dispute over the drone and hunting. Their interaction was of sufficient heat to prompt, on the respondent's version, the respondent to play music very loudly to annoy Mr Hill.

(g) Both deaths were violent. Apart from the respondent's exculpatory assertions, there is no evidence as to who was killed first. Mrs Clay was shot to the head by the respondent's shotgun when adjacent to Mr Hill's car. There is no forensic evidence as to how Mr Hill was killed.

(h) The respondent was the last person left alive at Bucks Camp.

1. Against those basal facts it is convenient to consider the conduct, as the judge did, in two groups - the second killing and all other conduct.

1. As already noted, the Crown cannot say in which order the deaths occurred but frames its case on the likelihood that Mr Hill died first. The success or otherwise of the prosecution case is not dependent upon the jury accepting that theory, but the order of killing is relevant to this issue.
2. Unlike the judge we are not concerned about bootstraps reasoning. It is not to engage in such reasoning to contend that the respondent killed the second person intentionally because he or she was a witness to the first death and that, if the jury are satisfied that the second person was killed intentionally, that killing thereby could evidence a belief in the respondent that he had murdered the first person killed. In other words, the second person was intentionally killed because he or she had been a witness to a murder, as opposed to a manslaughter or fatal accident. That logic applies no matter which person was killed first.
3. Nonetheless, such reasoning, if it is to be used, must be employed with respect to a specific charge on the indictment. That is, if Mrs Clay was killed first, the jury could, if they found beyond reasonable doubt that the respondent subsequently murdered Mr Hill because he was a witness to the murder of Mrs Clay, reason that his murder was an implied admission of the murder of Mrs Clay. The reverse is also true.
4. The difficulty at this stage is that the evidentiary basis on which the jury could determine the order in which the deceased died unlawfully is as yet unclear. The Crown presently frames its case on the likelihood that Mr Hill died first. In his record of interview the respondent states that Mrs Clay died first. The respondent's statement of the order of the deaths is tied up with his exculpatory explanations for them. The position may become clear once all the evidence is in. It is at that point that the trial judge will be able to determine if the intentional death of the named person who died second in time (if the jury are first satisfied of that fact) is available as evidence of incriminating conduct in the trial for murder of the named person who died first in time.
5. If that point is reached, it is immaterial that a jury might reason that the second killing was intentional because the respondent panicked following an accidental killing or an unintentional killing caused by an unlawful and dangerous act. Following the s 21(1)(a) direction, the jury would need to exclude those explanations as reasonable before the evidence could be used as evidence of an implied admission of murder of the person killed first in time.
6. It follows that we consider it to be premature to determine whether the Crown should be permitted to rely upon the second killing as detailed in paragraph (a) of the Revised Notice as evidence of incriminating conduct.

1. Each individual piece of post-offence conduct is a piece of circumstantial evidence to be considered with both the other pieces of post-offence conduct and the other evidence. If the individual piece of evidence considered with the other evidence could lead a jury to find a murderous intent on the part of the respondent, it will be admissible as some evidence bearing upon that issue.
2. Here, the judge's 'prudential' concern is misplaced. If the jury do reason that the relevant conduct is conduct incriminating of murder, they would be entitled to use that evidence as evidence of murderous intent, even in the absence of other evidence to support such conclusions.[81] It is the jury's role to consider this circumstantial evidence as part of the circumstantial case. It does not equate with treating the incriminating conduct evidence as a confession to murder. It would not engender a miscarriage of justice. It is not to be lightly assumed that a jury would be incapable of following the directions in ss 21 and 22 of the JDA or any other directions.
3. All conduct upon which the Crown seeks to rely as evidence of incriminating conduct is plainly capable of allowing a rational jury to conclude that the only reasonable explanation of it is that the respondent believed that he had murdered Mr Hill and Mrs Clay. The jury could rationally conclude that having murdered both of them, the respondent immediately engaged in a deliberate, calculated and protracted series of actions to disguise his involvement in, and the manner of, their deaths. It is a matter for the jury to determine whether or not the incriminating inference is to be drawn.
4. In this regard it is to be recalled that in his 24 November 2021 account the respondent said that the post-death actions he took in panic were aimed at making him disappear - to disconnect him from the deaths - rather than making Mr Hill and Mrs Clay disappear.
5. Each item of conduct particularised in the Revised Notice builds on each other. The culmination is the burning of badly decomposed bodies about seven months after the deaths - an activity that took all night and made the respondent physically sick - and the scattering of the remains. The jury could conclude that such conduct is disproportionate to accidental or unintentional killing and capable of founding incriminating conduct reasoning for the crime of murder. Moreover, the jury could conclude that each of the previous steps detailed in the Revised Notice could also only be described as an extraordinary response to accidental or unintentional killings.
6. Considered alone and in combination with each other and the whole of the rest of the evidence, it would be open for the jury to conclude that each piece of conduct was intended not only to distance the respondent from the scene but to obliterate any possibility that there could be forensic evidence which could reveal anything about the manner in which each of the deceased died. From that the jury could reason that the only rational explanation was that the respondent believed he had murdered each of Mr Hill and Mrs Clay and the forensic evidence was likely to reveal or support that belief.
7. The logical basis for that pathway of reasoning does not over-estimate the true probative value of the evidence. The jury will be appropriately directed as to their need to be satisfied that the only reasonable explanation for the conduct is that the respondent believed he had committed the offence or offences charged. That the conduct occurred after two deaths rather than one is a reason to allow the jury to determine whether or not 'one accidental killing might be unlucky, but two stretches credulity and smacks of murder'[82]. There is no unacceptable danger that the jury will treat the two charges as a 'job lot'.[83] The jury will be appropriately directed as to the need for separate consideration and will understand that in respect of each charge the use of the conduct as incriminating conduct will require a finding - with respect to each deceased - that it is the only reasonable explanation for it. On the facts of this case, the respondent destroyed the joint campsite of the deceased and destroyed both bodies, as well as disposed of the trailer and altered his Nissan that was at the joint campsite of the two deceased.
8. The respondent's hypothesis is that a person who believes he is guilty of two unlawful killings - that is two counts of manslaughter - knows that he is in really serious trouble and that his subsequent actions are equally explicable by a belief in two manslaughters as they are by a belief in two murders. That is, the incriminating conduct could equally be the product of a belief in double murder or double manslaughter. The answer to that is twofold. First, the defence hypothesis is double accident, not double manslaughter or single manslaughter. Secondly, as we have explained, the post second killing conduct is so extreme that a jury could conclude that it is only consistent with a belief in double murder. There is a large distinction to be drawn between a response to double manslaughter belief and a double murder belief.

1. If a jury were not satisfied, on the basis of all the evidence, that the respondent had a murderous intent, each individual piece of conduct evidence would also be available, along with all the other evidence, as bearing upon the issue of the respondent's intention on the charge of manslaughter. In other words it is relevant as incriminating conduct to the issue of whether the respondent, at the time of the fatal act, intended some harm, not trivial, but falling short of an intention to kill or cause really serious injury.
2. Viewed in this way, each piece of circumstantial post-offence conduct evidence is available to the jury when considering both murder and manslaughter. It is not one or the other.

1. Leave to appeal is granted and the appeal allowed. The interlocutory decision is set aside. Except for paragraph (a) the Crown is permitted to rely upon the evidence identified in its Revised Notice, as well as the evidence that the respondent in November 2020 returned to the site of the bodies, burnt them and crushed and scattered their remains, as evidence of incriminating conduct both as to murder and manslaughter.

[1] As this was an interlocutory appeal, the publication of this judgment was previously restricted until the conclusion of the respondent's trial on 25 June 2024.

[2] Ruling No. 2, R v Lynn (Rulings 1-4) (Croucher J).

[3] R v Lynn (Ruling 5). The advisory ruling was written in a short, conclusionary manner absent detailed reasoning to allow its prompt delivery and to preserve the listed trial date. Without any criticism of the trial judge in adopting that course, this Court requested the trial judge to provide full reasons for his conclusions. The judge did so.

[4] R v Lynn Ruling 5 - Full reasons.

[5] Revised Summary of Prosecution Opening, [40]-[43].

[6] This was the basis upon which counsel for the applicant stated this Court should approach the issue.

[15] [2015] VSC 220 ('Scriven').

[16] These were - Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 ('Weissensteiner'); R v Rice [1996] 2 VR 406; R v White [1998] 2 SCR 72 (Major J) ('White'); R v Cengiz [1998] 3 VR 720; R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA) ('Ciantar'); Butler v The Queen [2011] VSCA 417; (2011) 34 VR 165 (Maxwell P, Ashley JA and Ross AJA) ('Butler'); Mocenigo v The Queen [2013] VSCA 321 (Buchanan, Neave and Priest JJA); R v Butler (Rulings 1-10) [2013] VSC 688 (Croucher J); Lane v The Queen [2013] NSWCCA 317; (2013) 241 A Crim R 321 (Bathurst CJ, Simpson and Adamson JJ); DPP v Zhuang [2014] VSC 276 (Kaye J); The Queen v Baden-Clay (2016) 258 CLR 308 (French CJ, Kiefel, Bell, Keane and Gordon JJ) ('Baden-Clay'); DPP v Wan (Ruling No 1) [2018] VSC 19 (Kaye JA); DPP v Lyons [2018] VSC 297 (Kaye JA); R v Novakovic & Ors (Ruling No 1) [2019] VSC 338 (Croucher J); DPP v Ristevski [2019] VSC 165 (Beale J) ('Ristevksi'); Doherty v The Queen [2019] VSCA 70 (Kaye, Niall and Weinberg JJA) ('Doherty'); and R v Tan (Ruling No 2) [2023] VSC 297 (Fox J) ('Tan').

[25] R v Butler (Rulings 1-10) [2013] VSC 688.

[60] [2006] VSCA 86; (2006) 12 VR 401 ('Heyes').

[63] [2023] HCA 32; (2023) 97 ALJR 857 (Kiefel CJ, Gageler, Steward, Gleeson and Jagot JJ); [2023] HCA 32.

[64] (1936) 55 CLR 499.

[65] (1979) 142 CLR 531; [1979] HCA 9.

[66] Section 23 outlines an optional direction in the event that evidence of conduct is led but the prosecution does not rely upon it as evidence of incriminating conduct. Section 24 makes clear that except as provided for in Division 1 of Part 4 of the JDA, a trial judge is not required to give the jury a direction regarding evidence because it is evidence of incriminating conduct or may be improperly used as evidence of incriminating conduct.

[67] Doherty, [37]. That issue may be connected to admissibility where the evidence is not admissible for any purpose other than as evidence of incriminating conduct.

[69] [2014] VSC 276 ('Zhuang').

[71] The relevant provision in the 2013 Act.

[74] Ciantar [39]-[40] (footnote omitted).

[76] Baden-Clay, [73]-[74] (citations omitted).

[77] Reasons, [57], drawn from the Revised Summary of Prosecution Opening.

[78] Ciantar, [72], referred to in Scriven, [22].

[81] Butler, [1] (Maxwell P), [134] and [137] (Ashley JA with whom Ross AJA agreed).