DPP v McCartin

2 In the case of each of the accused, the prosecution intends to rely on certain conduct, by that accused, as evidence of incriminating conduct. Each accused has submitted that it would not be open to the jury to use the conduct in question as an implied admission of guilt by the accused, or as an implied admission by that accused of an element or relevant fact in respect of the offence charged against that accused.

3 The deceased man, Ricky Rowlands, was the former partner of Candice Harper, by whom they had a daughter. The incident, with which this case is concerned, occurred in King Street, Melbourne near the Ibis Kingsgate Hotel, which is situated near the intersection of Bourke Street. At the time of the incident, the accused persons Benjamin McCartin, Candice Harper and Jamie Holt were each residing at the hotel.

4 On the evening on which the incident occurred, the other two accused persons, Jacinda Brown and Dale Miller, were outside the hotel mixing with people who they knew in the area. At that time, Ricky Rowlands had developed a habit of attending at the hotel and socialising with people on the street near it. At some stage during the early evening on the day of the incident, Mr Rowlands attended outside the hotel for that purpose.

5 Shortly after 9:34 pm, a verbal argument took place between Harper and Rowlands. As the argument proceeded, McCartin and Holt also became involved in it. A physical altercation occurred between them and Rowlands. The altercation spilled onto King Street into the path of oncoming vehicles. As a result the incident came to a temporary halt, and the participants in it returned to the footpath.

6 Shortly after that interruption, Harper and Rowlands resumed their verbal argument. In the course of the argument, Rowlands flung Harper onto the street. McCartin and Holt then approached Rowlands and a further physical altercation occurred. In the course of that incident, the prosecution alleges that Harper punched at and grabbed at Rowlands, Holt punched Rowlands on the head and struck him on the head with a glass bottle, and Harper and Holt each grabbed him by an arm and pulled him down, while McCartin stabbed him three times with a knife.

7 The prosecution alleges that, earlier on that evening, Brown had carried the knife with her in a bag when she and Miller had attended outside the Ibis Kingsgate Hotel. It is alleged that Brown and Miller gave the knife to Holt, shortly before Holt and McCartin joined in the argument that had erupted between Harper and Rowlands. The prosecution further alleges that, at some stage during the altercation, Holt gave the knife to McCartin, which McCartin used to stab Rowlands.

8 As a result of the injuries that he sustained, Rowlands was taken to the Royal Melbourne Hospital. He was found to have sustained multiple stab wounds. In addition, as a result of the blows that had been struck to his head, he suffered an haemorrhage to the brain. Despite efforts to save his life, he passed away at 6:00 am on the following morning. The prosecution alleges that Rowlands died as a result of a combination of the stab wounds and the intracranial haemorrhage.

9 In substance, the prosecution alleges that McCartin and Holt are each guilty of the murder of Rowlands on the basis that they each performed an act which directly caused the death of Rowlands. Alternatively, it is contended that they each, together with Harper, were complicit in the murder of Rowlands, either on the basis that they assisted or encouraged the performance of the particular assault which caused the death of Rowlands, or alternatively, that that assault was performed pursuant to an agreement or arrangement between them that they kill or cause really serious injury to Rowlands. The case against the accused Miller and Brown is that they intentionally encouraged and assisted Harper, Holt and McCartin to commit an unlawful and dangerous assault on Rowlands as a consequence of which Rowlands died.

10 The defence responses, that have been filed on behalf of each accused in response to the summary of the prosecution opening, assist in defining the principal issues in the trial.

11 The accused McCartin does not dispute that his actions contributed to the death of the deceased. The two principal issues, raised on behalf of McCartin, are, first, his denial that he intended to kill Rowlands or cause him really serious injury, and, secondly, his assertion that in stabbing Rowlands, he acted to defend himself and others from death or really serious injury.

12 The accused Harper does not dispute being involved in the altercation with Rowlands in the moments before he was stabbed. However, she denies that she had any intention to kill him or cause him really serious injury, and specifically she denies intentionally assisting or encouraging the other accused to murder Rowlands, or entering into any agreement, arrangement or understanding to do so. In her interview with the police after she was arrested on 11 October 2020, Harper said that she attempted to be the mediator in the dispute, and that her involvement in the altercation was confined to trying to break it up. She told police that she only saw the knife 'just before it happened'. She said she thought that she caught a glimpse of it 'coming over the top', and that the knife did not 'come out until the end' of the incident.

13 The accused Holt denies that he personally contributed in a significant way to the death of Rowlands. Further, he denies intending to kill Rowlands or cause him really serious injury, and he denies intentionally assisting or encouraging McCartin, or being party to any agreement, arrangement or understanding with McCartin, to kill Rowlands or cause him really serious injury. Thus, in essence, the two principal issues raised on behalf of Holt are, first, that his actions did not cause or contribute to the death of Rowlands, and, secondly, he denies participating in the assault on Rowlands with the intention that Rowlands be killed or suffer really serious injury.

14 The defence response, filed on behalf of the accused Miller, raises one narrow factual issue. Relevantly, Miller does not dispute that, approximately ten minutes before the incident in which Rowlands was stabbed and killed, Brown pulled a knife out of her bag, placed it on the ground, and Miller picked it up and put it behind him at the back of his trousers. Further, Miller does not dispute that, while standing in a group with the other four accused in King Street, he produced that knife from the back of his trousers which he showed to Harper, and that about twenty seconds later, he passed the knife to Brown, who then passed it to Holt. Furthermore, he does not dispute that at that point he gave Holt two pats on the back, and Holt and McCartin then began to walk or run towards Rowlands.

15 The fact, which Miller puts in issue, is that in the course of the altercation that ensued between Holt, Harper, McCartin and Rowlands, McCartin took the knife from Holt and stabbed Rowlands with it. In other words, Miller puts in issue that the knife, that he had provided to Holt (through Brown), was used by McCartin to stab Rowlands.

16 In addition, Miller raises (as a primary issue) the issue whether he was complicit in the manslaughter of Rowlands. Specifically, Miller disputes that he intentionally assisted, encouraged or directed the commission of the 'alleged offence' (manslaughter), or that he intentionally assisted, encouraged or directed the commission of another offence (an assault on Rowlands using a knife and bottle) while he was aware that it was probable that the charged offence (manslaughter) would be committed in the course of carrying out that assault.

17 The accused Brown puts in issue the allegation that she handed a knife to Holt that was later used by McCartin to stab Rowlands. She further puts in issue that she provided a knife to Holt in circumstances where she was aware that McCartin, Holt and Harper were about to assault Rowlands. In her interview with the police after her arrest on 11 November 2020, Brown said that McCartin somehow 'got to our bag and he's pulled out a knife that belongs to us'. She said that the first time that she had seen the knife was when she watched the television news. She said that McCartin might have got the knife from her bag because she used to leave her bags alone when she went to the Ibis Hotel.

18 The prosecution has served on each of the five accused persons, a notice pursuant to s 19(1) of the Jury Directions Act that the prosecution intends to adduce and rely on particular evidence as evidence of incriminating conduct by that accused person.

19 In the notice addressed to McCartin, the prosecution proposes to rely on the following evidence as evidence of incriminating conduct by McCartin:

(1) Immediately after stabbing Rowlands, McCartin ran back to the Ibis hotel where he met Miller and gave Miller the knife, which Miller hid on his person.

(2) Ten minutes later, McCartin left his room in the hotel wearing different clothing, wearing a surgical mask and cap, and carrying a blue shopping bag, and he began walking around the hotel with his head down.

(3) At 9:50 pm, McCartin left his blood stained clothing inside the room of another occupant of the hotel (Hazelwood).

(4) A few minutes later, McCartin walked around the ground floor of the hotel, deliberately concealing himself from, and avoiding, police until he made his departure via the fire escape wearing a surgical mask and cap to hide his appearance. He then left the area and boarded a train that was bound for Richmond.

20 In the notice addressed to the accused Holt, the prosecution proposes to rely on the following evidence as evidence of incriminating conduct by Holt:

(1) After the incident, Holt returned to the hotel, entered Harper's room, changed his clothing and exited carrying a bag which he took to the room of another occupant (Martinucci).

(2) Holt then exited that room taking care to look right and left, and walked behind Harper and another person. When he heard police approaching, he turned and ran back towards the fire escape.

(3) One minute later, Holt jumped over waist-high wire mesh at a space in the floor, and landed five floors down on the ground injuring himself.

21 In the notice addressed to Harper, the prosecution has given notice that it proposes to rely on the following evidence as evidence of incriminating conduct by Harper:

(1) After the incident, Harper walked hurriedly to the hotel and made her way to room 314, where she removed her tracksuit pants and shoes, and exited the room.

(2) In her interview with the police, Harper lied to police by stating: that she did not see what McCartin stabbed Rowlands with, but she assumed it was a knife; that she only saw a glimpse of it before McCartin stabbed Rowlands; that her only involvement in the altercation in the incident was directed to trying to stop the altercation; and that when Rowlands fell over, she was standing back and she was not involved in the fight.

22 In the notice to Miller, the prosecution gave notice that it proposed to rely on a number of items of evidence as incriminating conduct. Subsequently, the prosecution has advised that it no longer intends to rely on some aspects of them, namely, the evidence of Miller disposing of the knife on the window ledge, a lie told by Miller to a police member who attended the scene (Joshua Harding), and a lie that Miller told in the course of his interview with police concerning the interaction that he had with Moonee Ponds Police Station about the incident. The other items of conduct, relied on by the prosecution in its notice to Miller, as evidence of incriminating conduct are the following:

(1) Following the incident, Miller received the knife from McCartin on King Street.

(2) Miller then caught the Werribee train from Southern Cross Railway Station. While on board the train, he removed his tracksuit pants which were probably stained with blood from the knife that he had received from McCartin, turned them inside out, and put them back on.

(3) When interviewed by police, Miller told the following five lies:

(a) when he arrived in King Street, he did not have any knife with him.

(b) when the fight occurred he found that there was a knife in his bag, and McCartin must have put the knife in the bag.

(c) Miller could not see Rowlands bleeding on the ground, because he was not looking in that direction, he was not paying attention.

(d) Miller denied that he was in possession of the knife directly before the incident and he denied that he had passed it to Brown (who then handed it to Holt).

23 In the notice to Brown, the prosecution proposes to rely on a number of lies, which it contends Brown told in her interview with police, as incriminating conduct, namely:

(1) McCartin had removed the knife out of her bag without her knowledge and she did not see where McCartin got it from.

(2) She did not see or remember McCartin getting the knife from the bag, and she did not know where it came from, whether it was from the bag or from a shop.

(3) The first time Brown had seen the knife was on the television news, she had never seen it before.

(4) She never touched a knife while she was at the Ibis or in King Street.

(5) She did not remember taking the knife from Miller and handing it to Holt immediately before the incident.

24 Most, but not all, the evidence referred to in the notices would be admissible in the trial for other purposes, regardless of whether it is also admissible as evidence of incriminating conduct by one or more of the accused persons. Ordinarily, it is permissible, and sometimes necessary, to defer, until the completion of evidence, ruling on the question whether the jury may use evidence of post-offence conduct as incriminating conduct by an accused person. However, in the present case, it is common ground that it is appropriate that I rule on that aspect of the evidence at this point. Some of the evidence - in particular, the evidence that McCartin, Harper, Holt and Miller each changed or disposed of their clothing after the incident, and aspects of the evidence relating to the departure of the accused persons from the scene - may not be otherwise admissible in the trial. In view of the reasonably limited nature of the evidence that is proposed to be adduced in the trial, I am sufficiently informed to be able to assess the evidence and relevance of the post-offence conduct, relied on by the prosecution, in the context of the evidence that is intended to be led in the trial.

25 The principles, that apply to the question of the permissible use of evidence of incriminating conduct in a particular case, have been considered in a number of recent appellant decisions, and, principally, in the decision of the Court of Appeal in R v Ciantar[1] and the decision of the High Court in The Queen v Baden-Clay[2] which I shall shortly discuss.

26 The evidence, that is in issue in the present case, is sought to be relied on by the prosecution as evidence of an implied admission by each of the accused of his or her guilt of the offence charged, or of a material element of that offence. That is, the prosecution seeks to rely on the evidence, that the accused acted in a particular way after Rowlands was wounded, as evidence of a consciousness by the accused that he or she had committed the offence charged, or that that accused believed that he or she had engaged in conduct, or held a state of mind, that was a material element of that offence.[3]

27 In determining whether the prosecution may rely on the evidence for that purpose, the test for the trial judge is not whether the jury should regard the evidence, of the conduct by the accused, as supporting the guilty inference contended for by the prosecution. Rather the question, for the judge, is whether the jury, acting rationally, could conclude that the evidence, considered in the context of the other circumstantial evidence in the trial, is capable of supporting that conclusion.[4]

28 Section 21(1)(a) of the Jury Directions Act 2015 provides that if the prosecution relies on evidence of conduct, as evidence of incriminating conduct, the judge must direct the jury that it may only regard the evidence, of such conduct, 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, if the jury concludes (inter alia) that 'the only reasonable explanation of the conduct is that the accused held that belief'. It follows that the test, that I must apply, is whether the jury, acting rationally, could conclude that the only reasonable explanation, for the conduct, is that the accused believed that he or she had committed the offence charged, or that that accused believed that he or she had engaged in conduct, or held a state of mind, which was a material element of that offence.[5]

29 Lies and post-offence conduct are a form of circumstantial evidence. The question whether the jury could permissibly use such evidence, as evidence of such an implied admission by the accused, must be considered taking into account all of the evidence in the case. If, considering the whole of the evidence in the case, the jury could not rationally regard the post-offence conduct of the accused as evidence of a consciousness of guilt by that accused, that is, if the post-offence conduct in context is 'intractably neutral', the judge should not permit the prosecution to rely on that conduct as evidence of incriminating conduct by the accused person.[6]

30 The legal context to the decision of the Court of Appeal in Ciantar, was the previous decision of the Court in R v Heyes.[7] In that case, the accused was convicted of the murder, and his co-accused was convicted of the manslaughter, of the brother of the accused's fiancé. The principal issues, in the trial of the accused, were self-defence, provocation and whether the accused had formed the intention to kill or cause really serious injury to the deceased. At his trial, the prosecution relied on lies, told by the accused to the police, as evidence of the consciousness of the accused of his guilt. Counsel for the accused had submitted to the trial judge that the evidence of the lies, upon which the prosecutor sought to rely, could not support an inference of the accused's guilt of murder rather than manslaughter. The trial judge ruled against that submission.

31 The Court of Appeal, by a majority (Buchanan and Vincent JJA), allowed the appeal, on the basis that the jury should have been directed that the lies told by the accused could not be used to determine whether he was guilty of murder rather than manslaughter by an unlawful and dangerous act. Buchanan JA (with whom Vincent JA agreed) noted that if the only issue had been self-defence, the evidence of the lies, told by the accused, was capable of supporting the conclusion that he had no justification for killing the deceased. However, the evidence of the lies told by the accused could not be used to determine whether he was guilty of murder rather than manslaughter by an unlawful and dangerous act, or manslaughter on the basis of provocation. Buchanan JA expressed the view that ordinarily, where murder and manslaughter by an unlawful and dangerous act are in issue, post-offence conduct by an accused could not be used to determine whether the accused was guilty of murder as opposed to manslaughter.[8]

32 In Ciantar, the accused was convicted of culpable driving and failing to stop after an accident. The accused, who had been drinking early on the day, killed a pedestrian in a motor vehicle accident. Instead of stopping at the scene, the accused drove to his father's house, who then reported the accident to the police. On appeal, the accused contended that the judge had erred in his directions to the jury about the use it might make of the accused's flight from the scene of the accident. In particular, it was submitted that the judge should have directed the jury that the evidence of flight could only be used as evidence of the accused's consciousness of guilt, if it was satisfied that it derived from a realisation by the accused that he was guilty of the crime charged, namely, culpable driving, as distinct from a realisation by him of having been engaged in a lesser form of unlawful activity.

33 The Court of Appeal rejected that submission. In doing so, it expressly departed from the statement of principles by the Court in Heyes. Having referred to the argument made on behalf of the accused on appeal, 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 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.[9]

34 The Court noted that lies and post-offence conduct are a form of circumstantial evidence, the effect of which should be considered in the context of all the evidence in the case.[10] The Court then concluded:

With respect we are not persuaded that it is either necessary or desirable so to restrict the circumstances in which a jury may find evidence of post-offence conduct to be probative of guilt of a specific offence as opposed to a lesser included offence or other offences on a multiple count presentment or, as in the present case, other offences disclosed by the evidence. The interrelationship between evidence of consciousness of guilt and other evidence is inherently more complex than that, and the permutations and combinations of facts in which it may fall to be applied are infinitely variable. As Winneke, P. in effect observed in R v Burrows exclusionary rules of the kind propounded in Heyes unnecessarily confine trial judges where post-offence conduct may be relevant and probative.

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.[11]

35 The decision of the Court of Appeal in Ciantar was not expressly referred to by the High Court in Baden-Clay, but the decision of the High Court in that case was based on the same reasoning as that employed in Ciantar.

36 In Baden-Clay, the accused was charged with the murder of his wife, whose body was found under a bridge on the bank of a river. The accused made false denials to the police about his continuing affair with another woman, Ms McHugh. He had suggested to her that she should remain inconspicuous, and he asked her whether she had revealed their affair to the police. At the trial, the accused denied that he had anything to do with his wife's death, and he gave evidence to that effect. On appeal, it was contended that the evidence, as to the conduct of the accused after the offence, could not be used by the court in determining whether it had been open to the jury to be satisfied that the accused had killed his wife with murderous intent.

37 The High Court rejected that proposition. The court considered that the respondent's false denials to the police about his ongoing affair, and his attempts to conceal it, could reasonably be considered by the jury as indicative that, in his mind, the affair, and the killing of his wife, were inter-related, so that the killing was not 'an unintended tragic death of his wife, but an intentional killing'.[12] The court noted the views expressed by Major J of the Supreme Court of Canada in R v White[13] that the question whether post-offence conduct is intractably neutral as between murder and manslaughter, will invariably depend on the nature of the evidence in question and its relevance to the real issue in dispute. The court then concluded:

Secondly, as already stated, the post-offence conduct must be precisely identified, as too must be the circumstances and events that are said to indicate that by engaging in the conduct the accused demonstrated a consciousness of his conduct constituting the offence which is charged. The judge must also be satisfied that the conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating consciousness of guilt.[14]

38 The reasoning in Ciantar, and in Baden-Clay, was applied by the Court of Appeal in Zandipour v The Queen.[15] In that case, the applicant had been involved in a fatal assault on the deceased following an altercation between the deceased and a friend of the applicant. CCTV footage of the incident showed that after the deceased had been swung to the ground, the applicant kicked him a number of times to the head and neck area, and then stomped on his head. The applicant then left the scene and ran back to his apartment. The prosecution relied, as incriminating conduct, on the conduct of the applicant having departed from the scene, and also on lies that he told the police in the course of his record of interview. On appeal, it was submitted on behalf of the applicant, that the judge failed to adequately direct the jury as to how his post-offence conduct might bear on whether he had the requisite murderous intent. The applicant acknowledged that the incriminating conduct, consisting of his flight and the lies that he told to the police, could be used to negate self-defence, but he submitted that his flight and the lies that he told the police could not be used by the jury in determining whether it was satisfied beyond reasonable doubt that he had the requisite murderous intent.

39 The Court of Appeal rejected that submission in the following terms:

It must be remembered that the applicant, having assaulted Hardy, fled from the scene, pushing aside those who sought to have him remain and provide assistance. He later told a series of demonstrable lies regarding the events in question, including having put forward an utterly spurious claim of self-defence. It was well open to the jury to conclude that such post-offence conduct was consistent with his having recognised that he had sought to inflict really serious injury upon the deceased, rather than having merely been involved in an altercation where unintended consequences had occurred. There was nothing 'intractably neutral' about the post-offence conduct, and no need for the warning now said to have been indispensable. Proposed ground 4 must therefore be rejected.[16]

Submissions on incriminating conduct alleged against McCartin

40 Counsel for the prosecution submitted that the incriminating conduct alleged against McCartin - changing and disposing of his clothing, and surreptitiously leaving the building - are relevant to prove that McCartin knew or was aware that at the time that he stabbed Rowlands, he was not then acting lawfully in self-defence or in defence of another person. In the course of the oral argument, counsel accepted that the first item of conduct specified in the s 19(1) notice - handing the knife to Miller - could not be relied on by the jury for that purpose.

41 In response, counsel for McCartin submitted, first, that in the context of the evidence to be adduced in the trial, the incriminating conduct alleged against McCartin is not relevant. Alternatively, it was submitted that any probative value of that evidence would be substantially outweighed by the risk of unfair prejudice to McCartin and therefore should be excluded under s 137 of the Evidence Act 2008.

42 In particular, it was submitted that the evidence, of the conduct of McCartin sought to be relied on by the prosecution, would not add any material weight to the inference to be drawn by the jury, from the direct evidence consisting of the CCTV footage, relating to the question whether McCartin was acting in self-defence at the time at which he stabbed Rowlands. In that respect, counsel referred to a ruling that I gave in the matter of DPP v Wan,[17] in which the incident had been captured on CCTV footage. In that case, I ruled that the evidence of post-offence conduct by Wan, consisting of his attempts to locate and destroy the CCTV footage, could not rationally and materially add to the probabilities that, when the accused in that case inflicted the fatal blows to the deceased, he did so with murderous intention. In the present case, it is submitted that the conduct of McCartin, after the offence, could not add to any inference, drawn by the jury, as to whether he had acted in self-defence when he stabbed Rowlands.

43 Counsel further submitted that the jury could not reasonably exclude the possibility that McCartin changed his clothes after the incident, because he did not wish to wear, or be seen to be wearing, clothes which had blood stains on them. It was submitted that such an explanation was reasonably open, and could not be rationally excluded by the jury. Counsel further noted that while McCartin then walked around the hotel wearing a cap, he had been depicted wearing a cap throughout the whole of the incident in question. In addition, the jury could not reasonably exclude that McCartin wore the mask while he was walking around inside the hotel, because at the time of the incident, the COVID-19 pandemic was prevalent. Counsel further noted that the fire escape, through which McCartin exited from the hotel, was only a short distance from the main entrance from the hotel.

44 In addition, counsel submitted that the jury could not exclude, as being reasonably open, the possibility that McCartin changed his clothes, sought to avoid scrutiny by the police, and left the hotel, because he was concerned that police might not accept that he acted in self-defence when he stabbed Rowlands.

45 In response, counsel for the prosecution submitted that the evidence, sought to be relied on, would add materially to the conclusions to be drawn by the jury, from the CCTV footage, as to whether McCartin had been acting in lawful self-defence at the time he stabbed Rowlands. It was submitted that the jury would be entitled to infer that the conduct by McCartin, after the incident, was inconsistent with the reaction of a person who had acted in lawful self-defence in the circumstances. Counsel noted that McCartin did not return to his own room in order to change his clothing, but, instead, he did so in the room leased by Hazelwood. Accordingly, it was submitted, the jury would be entitled to infer that McCartin acted in that way in order to ensure that police did not have the opportunity to access and examine the clothing that he had worn. It was submitted that that conduct, combined with the surreptitious manner in which McCartin made his way about the hotel and then left it through the fire escape, rather than through the main entrance, could reasonably be considered to be the actions of a person who knew that he had not acted lawfully in his assault on Rowlands. Counsel further noted that McCartin not only left the hotel on that date, but he did not return to it at all until he was arrested some four days later.

Analysis and conclusion - incriminating conduct alleged against McCartin

46 The conduct, which is alleged against McCartin, all occurred a short time after McCartin had been involved in the incident in which he had stabbed Rowlands three times in the upper body, and then made his way directly back inside the Ibis Hotel. It was in that context that McCartin changed his clothing in the room of another occupant, left the clothing in that room, and then proceeded to walk around the interior of the hotel with his face covered by a mask. In doing so, he attempted to avoid the attention of police, on occasions abruptly changing direction when he observed police approaching him. He then departed the premises through the fire escape rather than through the main exit.

47 Taken together, in my view, the jury would be entitled to conclude that that conduct was inconsistent with the behaviour of a person who considered that he had acted in genuine defence of himself or another person when he had stabbed Rowlands. The jury, using its every day experience, could reasonably conclude that a person, who had acted with such a sense of justification, would not have engaged in such a series of actions which were designed to avoid being recognised and intercepted by police at the premises of the Ibis Hotel.

48 That inference would be reinforced by the circumstance that, having surreptitiously departed from the hotel, which was then his home, McCartin remained away from it for the following four days until he was located and arrested by police. The conduct of McCartin, in remaining absent from the premises, reinforces the conclusion that the reason, why McCartin had left the premises on the night in question in those circumstances, was to avoid detection and apprehension by the police for having committed what he knew to have been an unlawful act which had resulted in a particular serious injury, and ultimately death, to Rowlands.

49 Taking those factors into account, in my view, the jury could reasonably exclude the alternative explanation that McCartin had acted out of a sense of panic, notwithstanding that, when he stabbed Rowlands, he knew he had then been acting to defend himself or to defend another person or other persons. While the jury may accept that McCartin was invested with some feeling of panic or concern, it could, in my view, rationally exclude the hypothesis that McCartin's conduct was a product purely of panic, rather than he was acting out of panic born from a consciousness by him that he had acted wrongfully and unlawfully when he stabbed Rowlands. Each of the steps taken by McCartin, relied on by the prosecution - changing and discarding of his clothing, donning a face mask, attempting to avoid police in the premises, exiting the hotel and remaining absent from it - were actions which, a jury could reasonably conclude, were inconsistent with the conduct of a person who believed that he had acted lawfully in assaulting Rowlands with the knife.

50 Accordingly, the prosecution is entitled to use the evidence to which I have referred as evidence that McCartin was aware that when he stabbed Rowlands he had not then been acting lawfully to defend himself or to defend another person or other persons.

Submissions - incriminating conduct relied on against Holt

51 In the written response filed on behalf of Holt, to the summary of the prosecution opening, Holt in effect denied any relevant involvement in the assault on Rowlands, and he did not make any admissions as to conduct associated in any way with his death.

52 In oral submissions, counsel for Holt clarified the position which would be taken on behalf of Holt in the trial. In essence, counsel advised that Holt accepted that he had aided and abetted McCartin in his assault on Rowlands, and Holt conceded that he was not then acting in self-defence. In essence, counsel advised, the principal issue in the trial, relating to Holt, will be whether, at the time at which he assisted or encouraged McCartin in the assault on Rowlands, he did so intending that Rowlands be killed or suffer really serious injury. In other words, as stated by counsel, the principal issue will be whether at the relevant time, Holt had a murderous intent or whether, on the other hand, he was guilty of the alternative offence of manslaughter.

53 In that context, counsel submitted that there would only be three factual issues in the trial involving Holt. The first issue was whether Holt either struck Rowlands or threw a bottle at him. Secondly, there would be an issue whether the bottle with which Holt either struck Rowlands, or which Holt threw at him, was a glass or a plastic bottle. The third issue in the trial would be whether the blow or blows inflicted by Holt on Rowlands, caused or contributed to Rowlands' death.

54 In that context, counsel submitted that it would not be open to the jury to conclude that Holt engaged in the post-offence conduct, relied on, because he was aware that he had participated in the assault on Rowlands with the intention that Rowlands be killed or suffer really serious injury. Thus, counsel submitted, the evidence relied on was intractably neutral as to whether Holt performed that conduct with a murderous intent, or with the lesser intent requisite for the offence of manslaughter, namely, an intention to engage in an unlawful act which an ordinary person, in his position, would have realised would expose Rowlands to an appreciable risk of serious injury.

55 In response, counsel for the prosecution placed considerable reliance on the conduct of Holt in seeking to hurriedly exit from the Ibis Hotel. At the time Holt was on the fifth floor of the premises. He climbed over a wire mesh which protected persons, in the hotel, from falling into a space, or well, of the fifth floor and each of the floors beneath it. Counsel submitted that the jury could reasonably conclude that the conduct of Holt, in using such a desperate means of exit from the premises, was due to a recognition by him that he had participated in the assault on Rowlands with the intention that he be killed or suffer really serious injury.

Analysis and conclusion-incriminating conduct alleged against Holt

56 It is unarguable that the conduct, engaged in by Holt after his involvement in the offence, could reasonably be considered by the jury to be that of a person who had intentionally been involved in an unlawful assault on Rowlands which an ordinary person, in the position of Holt, would have realised exposed Rowlands to an appreciable risk of serious injury. However, I do not consider that the post-offence conduct, relied on by the prosecution, would be a sufficient basis for the jury to conclude that the only reasonable inference was that Holt engaged in that conduct, because he knew that he had participated in the assault on Rowlands with the intention that Rowlands be killed or that he suffer really serious injury. In particular, the jury could not rationally exclude the alternative hypothesis, relied on by counsel for Holt, as being reasonably open on the evidence, namely, that, at the time at which Holt engaged in that conduct, he was conscious that he had intentionally been involved, without any lawful justification, in a serious assault on Rowlands, which had resulted in Rowlands (at the time of the conduct) sustaining really serious injury.

57 I therefore consider that the prosecution is not entitled to rely on the conduct, specified in the notice to Holt, as incriminating conduct by Holt.

Submissions - incriminating conduct alleged against Harper

58 In support of the evidence relied on as incriminating conduct by Harper, the prosecution has noted that in her interview with the police, Harper specifically denied participating in any assault on Rowlands, and said that her only involvement in the incident was directed to intervening and breaking up the fight.

59 Counsel for the prosecution noted that the evidence relating to the change of clothing, that is sought to be relied on as incriminating conduct, consisted of Harper's conduct, first, in entering room 314 in the Ibis Hotel, where she removed her pants and shoes, and then leaving them in that room. Harper then entered room 337, and a short time later left the room wearing different pants and a different top, but not wearing any shoes.

60 In that context, it was submitted, the conduct of Harper, in changing her clothing, is evidence of an implied admission by Harper that: she had participated in an unlawful assault on Rowlands; she was aware that the assault had resulted in Rowlands being very seriously injured, if not killed; and she thought that she might be legally responsible for the serious injury or death of Rowlands.

61 Counsel for the prosecution further submitted that it is open to the jury to conclude that Harper, in her interview with the police, told a deliberate lie when she said that she only saw the knife at the very end of the incident. Counsel noted that a few minutes before the fatal incident, Miller had produced the knife from the back of his trousers which he showed to Harper, and then to the other accused who were present. Approximately two minutes later, in the first phase of the fatal incident, Holt and McCartin joined Harper who was then engaged in a verbal argument with Rowlands. Holt swiped at Rowlands with the knife while Harper and McCartin each advanced towards him. In the final phase of the incident, Harper was physically involved in the altercation when McCartin stabbed Rowlands three times. In those circumstances, counsel submitted, the jury could comfortably conclude that Harper told a deliberate lie to the police in her interview when she said that she only saw the knife at the end of the incident.

62 Counsel for the prosecution further submitted that that lie is highly relevant to a central aspect of the charge of murder against Harper. The prosecution case against Harper is based on the proposition that she joined McCartin and Holt in an attack on Rowlands knowing that one of her co-offenders had, and was intending to use, a knife. In that context, it was submitted, Harper lied about her knowledge of the existence of the knife, because she believed that the truth would implicate her in the attack on Rowlands involving the use of the knife. In that way, it was submitted, the lie told by Harper could reasonably be accepted by the jury as constituting an implied admission that she joined in a three-on-one attack on Rowlands knowing that one of her co-offenders had, and was intending to use, a knife.

63 In response, counsel for Harper submitted that neither item of evidence, sought to be relied on by the prosecution as incriminating conduct - the disposal of her clothing, or lies that she told to the police - could rationally be regarded by the jury as an implied admission by her that she committed the murder of Rowlands or an element of it.

64 Counsel noted that while it is not disputed that Harper entered room 314 and removed articles of clothing, which she left behind, there is no evidence that she attempted to conceal or destroy her clothing. It was submitted that that conduct could not amount to an implied admission by Harper of having committed murder, or an element of that offence. In particular, it was submitted, there are other possible explanations for the removal by her of the clothing, which could not be excluded, the most obvious of which was her desire not to wear clothes that were marked with blood. In that context, it was submitted, it is relevant that Harper remained at the Ibis Hotel, despite being aware that police were in attendance. Further, Harper made no attempt to conceal her identity or to avoid being observed by the police who were then in attendance. The CCTV footage demonstrates that on one occasion she walked past two police members who were in the corridor of the hotel, and on another occasion, she walked in front of a police member. Between 9:36 pm and 9:40 pm she was walking around the second and third floors of the premises, without wearing any pants (but wearing a long T-shirt), and speaking to another resident of the hotel. Counsel further noted that Harper did not make any effort to hide or destroy the clothing that she had removed. When she was interviewed by police later on that day, she did not deny that she had been present during the incident or that she was aware that Rowlands had been injured.

65 Counsel submitted that, in that context, there were a number of possible reasonable explanations for Harper removing her clothing in the room that she did not occupy, which included, a reluctance by her to continue wearing bloodied clothing. In addition, her conduct was consistent with her reaction to her feelings of shock and panic after witnessing the stabbing. There is evidence that Harper had been adversely affected by drug use earlier in the day, so that her reasoning, at the time, might have been impaired. In those circumstances, it was submitted, it would not be open to the jury to conclude that the only reasonable explanation, for the conduct of Harper in removing her bloodied clothing, was that she believed that she was guilty of being intentionally involved in the killing of Rowlands.

66 Counsel further submitted that the answers given by Harper during her interview with the police, that are relied on as incriminating conduct, cannot be established to be lies. In that context, counsel submitted that the jury could not reasonably conclude that Harper told intentional lies to the police, when she said that she had only seen the knife at the very end of the incident. It was submitted that, in order to be able to rely on the evidence as incriminating conduct, the prosecution would need to establish that Harper had in fact seen the knife, and that she intentionally misrepresented to police that she had not seen it until immediately before Rowlands was stabbed. The altercation, that culminated in the stabbing, occurred in a dynamic and fluid incident that occurred over a relatively short period of time and involved the parties, who were involved in it, moving through vehicular traffic. Since the incident, Harper has been diagnosed as having poor eyesight, and she was not wearing spectacles or corrective lenses at the time of the incident. In addition, there is evidence that she was affected by the use of drugs at the time of the incident. The question whether, in those circumstances, Harper actually saw the knife, is a different issue to whether Harper could have seen the knife. In that respect, it was submitted, it is relevant that Harper told police that she had used drugs before and after the stabbing, which might have affected her perception during the incident and her later recollection of the incident.

67 In those circumstances, it was submitted, it could not be rationally concluded that the answers, given by Harper in the interview, were intentional lies told by her. Counsel accepted that, if the jury could conclude that Harper told a deliberate lie when she said to the police that she had not seen the knife, that evidence would be properly admissible as evidence of incriminating conduct by her.

Analysis and conclusion - incriminating conduct alleged against Harper

68 The question whether the prosecution may rely on the conduct of Harper, in changing her clothing shortly after the incident, as incriminating conduct, involves the resolution of two questions, namely:

(a) Whether a jury might reasonably conclude that that conduct by Harper was an implied admission by her either as to the commission of the offence charged (murder) or an element of it;

(b) If so, whether the jury could conclude that that inference was the only reasonable conclusion available on the evidence.

69 In respect of the first question, it is important to focus precisely on the specific implied admission, which, the prosecution contends, was constituted by the conduct of Harper in changing her clothing shortly after the incident. In essence, the prosecution seeks to contend that that conduct constituted an admission by Harper that she had intentionally participated in the assault on Rowlands and that she was aware that that assault had resulted in Rowlands either being killed or sustaining really serious injury. The prosecution does not submit that the conduct constituted an implied admission by Harper that she had participated in the assault with the intention that Rowlands would be killed or suffer really serious injury, or knowing that it was probable that he might either be killed or suffer such injury.

70 Counsel for Harper did not contend that such an inference was not open on the evidence. In my view, a jury could legitimately infer that the reason why Harper changed her clothing, in the circumstances in which she did so, was that she was aware that she had intentionally participated in the assault on Rowlands as a consequence of which Rowlands had suffered very serious injury. The critical issue, on this aspect of the case, is whether the jury could rationally conclude that that inference is the only inference reasonably available in the circumstances. In order to be able to logically reach that conclusion, the jury would need to be able to exclude any other competing hypothesis as not being reasonably open.

71 In that respect, counsel for Harper postulated a number of other competing hypotheses, as being reasonably open, and which, it was contended, the jury could not rationally exclude. In particular, it was submitted that the conduct of Harper was consistent with her understandable desire not to continue to wear clothing that was blood stained. In that context, counsel emphasised that Harper had been involved in a traumatic incident, and that her reactions may well have been the product of a combination of panic and the effects of the drugs which she had used earlier in the day.

72 Notwithstanding those submissions, I am persuaded that the jury could rationally exclude that hypothesis, and any other innocent hypothesis, as not being reasonably open on the evidence. The conduct of Harper must be considered in its proper context. Very shortly after the incident, Harper left the scene knowing that Rowlands had been very seriously injured. She almost immediately made her way to the room of another person in the Ibis Hotel. That person who had not been involved in the incident. There is some issue as to whether at that time, Harper had in her possession, a key by which she could open her own room. Nevertheless, the CCTV footage demonstrates that after she entered the hotel, she hurriedly walked around various floors of the hotel, and at 9:39 pm (about three minutes after the incident), she entered room 314 (which was registered to another resident) and there removed her tracksuit pants and shoes. Five minutes later she exited that room wearing only a long grey T-shirt and her socks.

73 That conduct bespoke Harper's perception that she must remove her shoes and pants with a degree of urgency. It was those items of clothing, together with her T-shirt (which she shortly thereafter removed in the room of another resident), that contained evidence which would implicate her in having physically participated in the critical incident. The jury may consider that Harper's actions were affected by an element of panic and the effects of drugs. Nevertheless, in my view, the jury could rationally conclude that the only reasonable inference, to be drawn from that conduct of Harper in the context in which it occurred, was that Harper was aware that she had intentionally participated in the assault on Rowlands, which assault had resulted in Rowlands sustaining very serious injury.

74 The next question is whether the prosecution may rely on answers given by Harper, in the interview with the police, that she did not see the knife until after Rowlands had been stabbed, as evidence of lies told by Harper to the police, which constituted an implied admission by her that she had joined in the assault on Rowlands knowing that one of her co-offenders had, and was intending to use, a knife.

75 The question whether the prosecution may use those answers, given by Harper in her interview with the police, as incriminating conduct, depends on the resolution of two issues, namely:

(a) Whether the jury could conclude that Harper intentionally lied to the police about not seeing the knife until Rowlands was stabbed with it; and

(b) If so, whether the prosecution may rely on such lies, as implied admissions to the effect alleged by the prosecution.

76 The submissions made on behalf of Harper, on that question, were directed to the first issue. Counsel submitted that, in the circumstances of the case, the jury could not reasonably conclude that Harper lied to the police about her lack of knowledge of the existence of the knife until Rowlands was stabbed with it.

77 As counsel has correctly submitted, the question for the jury would be not just whether Harper could see the knife, but whether she actually did sight it at the time at which she participated in the critical incident. That question is essentially one of fact based on the evidence.

78 As counsel for the prosecution has pointed out, the CCTV footage depicts Miller displaying the knife to Harper only a few minutes before the critical incident occurred. Further, the jury could readily conclude that in the first phase of the fatal incident that followed (which took place moments before the second phase), Harper could and did see Holt swiping at Rowlands with a knife. Harper was then close to Holt, and she and McCartin were advancing towards Rowlands. In those circumstances, in my view, the jury could be well satisfied, if necessary beyond reasonable doubt, that at that time, and in the few short minutes that followed, Harper engaged in the fatal altercation with the deceased knowing that one or other of her co-participants was armed with, and would use, the knife in assaulting Rowlands.

79 In those circumstances, I am persuaded that the jury could reasonably conclude that Harper engaged in the fatal altercation with Rowlands knowing that one of her co-participants was in possession of, and was intending to use, a knife in the assault on Rowlands. Accordingly, the jury would be entitled to conclude that Harper lied to police in her record of interview when she said that she had not seen the knife until Rowlands had been stabbed with it.

80 As I have mentioned, counsel for Harper accepted that, if the jury could conclude that Harper's answers in her record of interview were intentional lies told by her, the prosecution would be entitled to rely on those lies, told by Harper, as an implied admission that she joined in that fatal assault on Rowlands knowing that one of her co-offenders had, and was intending to use, the knife. That concession, made by counsel for Harper, is plainly correctly. As counsel for the prosecution submitted, the lies told by Harper were directly relevant to a principal aspect of the charge of murder against Harper, namely, that Harper joined McCartin and Holt in the attack on Rowlands knowing that one of them had, and was intending to use, a knife.

81 It follows that the prosecution may use the lies told by Harper as an implied admission by her that she had joined in the assault on Rowlands knowing that one of her co-offenders was in possession of the knife, and that he intended to use it in the assault.

Submissions - incriminating conduct alleged against Miller

82 Counsel for the prosecution submitted that the fact, that Miller took the knife back from McCartin, after Rowlands had been stabbed, was an implied admission by Miller that it was his knife in the first place. Counsel noted that that fact has been placed in issue by Miller in his response to the prosecution opening. Counsel submitted that the conduct of Miller, in receiving the knife from McCartin, would make little sense if it was not his knife in any event. Counsel submitted that it was open to the jury to exclude, as an explanation, that Miller took possession of the knife in order to assist McCartin.

83 Counsel for the prosecution noted that, in his interview with the police, Miller said that he had changed his trousers on the train, while he was leaving the city, because the police were all over the station and he was scared. Counsel submitted that Miller's explanation given in his interview, and the fact that he did change his trousers, amounted to an admission by him that he was attempting to evade police, which, in the circumstances, was capable of constituting an implied admission by him that he believed that he had committed a criminal offence - that is, either manslaughter (charge 2) or the offence of assisting an offender (charge 3) - which was sufficiently serious to warrant his conduct in removing his trousers on a reasonably busy train carriage.

84 In respect of the lies allegedly told by Miller to the police, counsel submitted that the first and fourth lies are relevant to the issue of whether Miller knowingly supplied a knife to the co-accused for the purpose that it be used in an assault on Rowlands. It was submitted that it would be well open to the jury to find that Miller told those deliberate lies about the knife, because he was aware that the truth (the fact that he did have the knife before the assault) would implicate him in the death of Rowlands.

85 Counsel for the prosecution further submitted that the second lie told by Miller - that after the fight occurred he found that there was a knife in his bag - is admissible as evidence of incriminating conduct on charge 3. Counsel submitted that it is open to the jury to conclude that Miller lied about his reception of the knife back from McCartin. Counsel further submitted that the lie told by Miller is capable of being considered by the jury as having been told by him out of an awareness that the truth would implicate him in charge 3, namely, that knowing that McCartin had committed a serious indictable offence using the knife, Miller intentionally did an act for the purpose of impeding McCartin's apprehension or prosecution in respect of that offence.

86 Finally, counsel for the prosecution submitted that the third lie told by Miller - that he did not see Rowlands bleeding on the ground - is capable of being considered by the jury to be an implied admission of an element of charge 3. In particular, it was submitted, the jury could conclude that the lie was told by Miller out of an awareness that the truth would implicate him in the offence of assisting an offender, because it would establish that he knew that McCartin had committed a serious indictable offence using the knife.

87 In response, counsel for Miller submitted that the jury could not reasonably conclude that the receipt by Miller of the knife from McCartin, after the incident, constitutes an implied admission by him that the knife belonged to him in the first place. In particular, counsel submitted that the jury could not rationally exclude, as reasonably open, an alternative hypothesis, namely that Miller took possession of the knife from McCartin in order to assist McCartin in disposing of the knife, after McCartin had used it in the altercation with Rowlands.

88 Counsel further submitted that the jury could not reasonably conclude that Miller's conduct, in removing his blood stained trousers while on the train, constituted an implied admission of either of the offences charged against him. In particular, it was submitted, that conduct was equally consistent with Miller not wishing to continue wearing blood stained trousers at that point. Alternatively, counsel submitted, the jury could not exclude the possibility that Miller changed his trousers on the train, because he was concerned that he might become wrongly implicated in conduct, committed by McCartin, which he was physically near, but which he had not been involved in. Further, it was submitted that if the conduct of Miller could be considered to be an implied admission of some kind of offending by him, nevertheless it would not be possible for the jury to conclude that that implied admission related to his involvement in the assault on Rowlands, or alternatively, the offence of assisting an offender.

89 In respect of the lies, which the prosecution contends Miller told to the police, counsel for Miller submitted that the prosecution could not prove that the second and third statements made by Miller were intentional untruths. The interview with Miller took place one month after the incident. Miller was standing a considerable distance from the incident when McCartin stabbed Rowlands. In addition, he was intoxicated at the time. The fact that the CCTV footage depicted certain events, that might have conflicted with the account given by Miller to the police, did not mean that he personally had a reliable and accurate recollection of the events of the evening when he participated in the interview.

90 Counsel further contended that if the jury were to conclude that the alleged untruths were deliberate lies told by Miller to the police, it could not be concluded by the jury that any of them amount to an implied admission by him of the offence charged.

91 In particular, counsel submitted that the jury could not exclude a number of possible innocent explanations for the first and fourth lies told by Miller. In particular, it was submitted, one possible explanation for those lies was that Miller was concerned that, if he told the truth, he would be guilty of the offence of possession of a weapon. Alternatively, it was submitted, the jury could not exclude the possibility that Miller lied about passing the knife to Brown to use either in her own self-defence or for Holt to use in his self-defence. Further, it was submitted, the lies told by Miller could do no more than be an implied admission that he was aware that Holt took the knife from Brown, but could not constitute an admission that he had a specific intention as to how it would be used.

92 In that context, counsel submitted it would be unrealistic to expect that Miller would have appreciated, in the course of the interview with the police, that any such innocent explanation he gave to the police would be accepted, or that it would be consistent with his innocence.

93 Counsel further submitted that the jury could not conclude that the second lie told by Miller - as to his receipt of the knife from McCartin after the incident - constituted a relevant implied admission by Miller that he had intentionally assisted or encouraged the assault by McCartin on Rowlands using the knife. Counsel noted that at the time at which Miller was interviewed - one month after the incident - he had had the opportunity to view CCTV footage that was published on television, and he was then aware that as a result of the altercation that he had witnessed, Rowlands had died. Accordingly, it was submitted, the lie told by Miller in the interview, as to how the knife came to be in possession after the stabbing, was necessarily infected with the knowledge that he did not have at the relevant time of the event in question, namely, that a person had been killed with a knife.

94 Counsel conceded that, in theory, the second lie told by Miller, could be used as an implied admission by him of an element of charge 3, namely, that he had taken possession of the knife knowing or believing that McCartin had used it to commit a serious criminal offence, namely, an assault on Rowlands with a knife which had resulted in Rowlands suffering serious injury. However, counsel submitted that, in the context of a complex case, a direction to the jury that it might only use that lie, told by Miller, in that respect, would have the potential to confuse the jury, so that the jury might misuse the lie as part of the proof of charge 2 against Miller.

95 Counsel submitted that the third alleged lie told by Miller - that he did not see Rowlands bleeding on the ground because at the time he was not looking in that direction - could not be reasonably concluded by the jury as being a lie deliberately told by Miller. Counsel further submitted that, in any event, if the jury were to accept that Miller did lie to the police when he said he did not see Rowlands on the ground bleeding, that lie would only be capable of being used in respect of the charge of assisting an offender (charge 3). In those circumstances, again, counsel submitted that there would be a risk that the jury might misuse that lie as part of the evidence available to it on charge 2 against Miller.

Analysis and conclusion - incriminating conduct alleged against Miller

96 In my view, counsel for Miller is correct in his submission that it would not be open to the jury to conclude that the only reasonable inference, from the conduct of Miller in taking possession of the knife from McCartin, was that Miller thereby admitted that he owned the knife. In the circumstances of the case, the jury could not reasonably exclude an alternative explanation for the conduct of Miller, namely, that he took possession of the knife in order to assist McCartin to dispose of it. At that point, McCartin was moving purposefully away from the site of an altercation in which Rowlands had been injured while holding the knife. In those circumstances, the jury could not exclude the possibility, that Miller was minded to assist McCartin to dispose of incriminating evidence, as a reasonable explanation for Miller's actions. Accordingly, I am persuaded that the evidence of the receipt by Miller of the knife from McCartin, could not reasonably be capable of being regarded by the jury as incriminating conducting in respect of any aspect of charge 2.

97 The next question, then, is whether the evidence, that Miller changed his trousers while he was on the train leaving the scene of the offence, could be reasonably regarded by the jury as incriminating conduct in respect of either charge 2 or charge 3.

98 In his interview with the police, Miller explained that he changed his trousers on the train, because he was concerned that police were 'all over the station' at the time. Thus it might be accepted that Miller's conduct, at that point, was directed to avoid being identified by police as a person who might have been involved in the offending which had occurred in the vicinity of the Ibis Hotel that evening.

99 However, the difficulty, which confronts the prosecution on this issue, is that it is not clear how the evidence, in that way, constituted an implied admission by Miller of his involvement in the offending in charge 2 or charge 3, or as to a relevant element of either of those two offences.

100 Certainly, as counsel for the prosecution submitted, Miller's conduct might be reasonably considered by the jury to be an implied admission that Miller himself believed that he had been involved in the commission of a criminal offence that was sufficiently serious to warrant his conduct in removing his pants on a reasonably busy train carriage, for the purpose of him avoiding being identified and located by the police as a person who might have been involved in some such offence. However, in order that the prosecution may use the evidence of that conduct by Miller, as 'incriminating conduct' for the purposes of ss 18 to 20 of the Jury Directions Act, the evidence of the conduct of Miller, in changing his trousers on the train, must be reasonably capable of being considered by the jury as an implied admission by Miller either that he had committed one of the two offences charged against him, or as an admission by him as to an element of one of those offences.

101 It is not suggested that Miller was in any way physically involved in the incident in which Rowlands was fatally wounded. Thus, his conduct in removing his trousers on the train, could not constitute an admission as to any such fact. Nor could such conduct be reasonably viewed by the jury as an admission by Miller that he had been responsible for supplying the knife to either Holt or McCartin before the incident, or that he had done so with the intention that it be used in the altercation with Rowlands. For those reasons, plainly, the evidence of Miller's conduct, in removing his trousers on the train, could not be regarded as an implied admission by him of any of the constituent elements of charge 2.

102 Further, I do not consider that that conduct could be reasonably considered to be an admission by Miller of any of the constituent elements of charge 3. The fact that Miller's conduct might have constituted an implied admission that he believed that he had committed a criminal offence, that was sufficiently serious to warrant him removing his trousers on the train, could not be properly regarded as an admission by Miller as to any of the relevant elements of the offence of assisting an offender.

103 Accordingly, it follows that the evidence of Miller's conduct, in removing his trousers while on the train, could not be regarded by the jury as an implied admission by Miller as to any element of either of the two offences charged against Miller. It follows that that evidence is irrelevant.

104 The third category of evidence, on which the prosecution relies as incriminating conduct by Miller, consists of lies told by Miller in the course of his interview with police.

105 The first and fourth lies told by Miller, in the interview, consisted of his denials that, when he arrived in King Street, he did not have a knife with him, and his denial that he was in possession of the knife directly before the incident and that he had passed it to Brown (who then handed it to Holt).

106 Based on the CCTV footage, it is clear that the jury could reasonably conclude that each denial, of those facts by Miller, constituted intentional lies told by him. The critical issue is whether those lies constituted a relevant implied admission by Miller.

107 At the commencement of the interview, Miller was told that he would be questioned in relation to the death of Rowlands. He was also given the usual caution. In that context, the jury would be entitled to consider that it would have been evident to Miller that the questions, concerning whether he had the knife with him and whether he supplied it to Brown, were directed to determining whether Miller had had a relevant role in McCartin's fatal assault on Rowlands using the knife. It is also significant that when Miller was asked about the knife, he did not proffer an innocent explanation for having it in his possession, or in providing it to Brown, such as that he had done so in order that Brown, or Holt, might use it so for the purposes of self-defence. In those circumstances, the jury could reasonably conclude that Miller told those two lies to the police, because he was aware that he had supplied the knife to Brown for the purpose that it would be used to assault Rowlands. That is, the jury would be entitled to use the lies told by Miller as an implied admission by him that, when he supplied the knife to the co-accused, he did so with the intent that it be used in the assault that was to occur on Rowlands.

108 The topic, on which Miller was then being questioned by the police, concerned his implication in a very serious criminal offence. In those circumstances, it would be open to the jury to exclude, as a reasonable explanation for the lies told by Miller, that he was concerned that, if he told the truth, he would admit his guilt of the summary offence of possession of a weapon. That is, in the context in which the questions were being asked of Miller, the jury could rationally exclude such a hypothesis as being reasonably open to it. It follows that the jury could conclude that the only reasonable explanation, why Miller told those lies, was because he knew that if he told the truth, he would admit that when he supplied the knife to Brown, he had done so for the purpose that it be used in the assault on Rowlands.

109 The second lie, told by Miller, concerned his receipt of the knife from McCartin after the incident. In the end, it was common ground that that lie could only be relevant to charge 3. In other words, the lie told by Miller would be capable of being regarded by the jury as an admission by Miller that he was aware that, when he took possession of the knife, it had been used in a serious criminal offence. Accordingly, it was common ground, and correctly so, that the second lie, told by Miller, could not be regarded by the jury as an implied admission by Miller of charge 2 or any element of the offence that was the subject of that charge.

110 Counsel for Miller submitted that while theoretically the lie so told by Miller could be used as a relevant implied admission in respect of an element of charge 3, nevertheless, I should not permit the prosecution to do so, because it would necessitate me giving to the jury a direction which would be complex and which might confuse the jury. I disagree with that submission. In my view, the jury could be adequately directed, in simple terms, that the lie so told by Miller could only be used by the jury, as an implied admission in relation to charge 3, but that it would not be relevant to the jury's consideration of the question whether the prosecution had proven the guilt of Miller on charge 2.

111 The third lie, relied on by the prosecution as incriminating conduct, is Miller's denial to the police that he could see Rowlands bleeding on the ground, because he was not at that time looking in that direction, and he was not paying attention. The prosecution seeks to rely on that lie as evidence of a consciousness by Miller that, when he received the knife from McCartin, he knew that it had been used in a serious assault on Rowlands.

112 The principal objection to that evidence, made on behalf of Miller, is that the jury could not reasonably conclude it to be a lie. Having viewed the relevant video footage, in my view, it would a matter of fact for the jury to determine whether it was satisfied that Miller did actually see Rowlands on the ground bleeding, and that accordingly he intentionally told the police a lie when he denied having done so.

113 If the jury is satisfied that Miller did see Rowlands bleeding on the ground, and that he intentionally lied when he denied having done so, it would be reasonably open to the jury to conclude that Miller told that lie, because he was aware that if he told the truth, he would thereby be admitting to the police that he knew that McCartin had seriously injured Rowlands with the knife, when he took the knife back from McCartin. In those circumstances, the evidence would, in my view, be relevant and admissible in respect of an element of charge 3.

114 In the course of submissions, I raised with counsel whether the use of the lie, for that purpose, would involve a degree of circularity. If the jury were satisfied that Miller did observe that Rowlands was on the ground bleeding, then that conclusion would be sufficient to prove the requisite element of charge 3. However, it does seem to me that if the jury is satisfied that Miller told a lie to the police in that respect, the jury could reasonably conclude, from the telling of that lie, that Miller not only knew that McCartin had stabbed Rowlands with the knife when he resumed possession of it, but also that Miller was aware that, in taking possession of the knife, he was assisting McCartin to avoid detection for a serious offence which McCartin had committed without lawful justification.

115 In those circumstances, I am persuaded that the jury could reasonably conclude that the third lie told by Miller is capable of constituting an implied admission by him as to an element of charge 3, namely, that Miller knew or believed that McCartin had committed a serious criminal offence.

Submissions - incriminating conduct alleged against Brown

116 Counsel for the prosecution submitted that it is open to the jury to conclude that Brown, in her interview with the police, told deliberate lies about how the knife was passed to the co-accused.

117 Counsel further submitted that if the jury were to conclude that Brown told deliberate lies in that respect, that evidence would be particularly relevant to the central issue in the case against Brown, namely, that she passed the knife on to the co-offenders with the knowledge and intention that it would be used immediately in an attack on Rowlands. Counsel submitted that the jury could reasonably conclude that Brown told the lies, about supplying the knife to the co-accused, because she was aware that if she told the truth, that would implicate her in the death of Rowlands. In particular, the jury could reasonably conclude that Brown lied to conceal the fact that she had been involved in handing the knife to Holt, because she knew that she did not provide the knife to Holt for an innocent reason. Thus, instead of advancing to the police an innocent explanation as to why she and Miller had provided the knife to Holt, she lied about supplying the knife to the co-accused. Accordingly, it was submitted, the evidence could reasonably be concluded to be an implied admission by her that she was aware that, at the relevant time, the knife was going to be used in an attack on Rowlands.

118 In response, counsel for Brown submitted that the jury could not reasonably conclude that the lies, told by Brown concerning the knife, amounted to an implied admission by Brown of having committed the offence charged or an element of that offence for two reasons. First, counsel submitted that in order that the lies, told by Brown, constituted an implied admission by her of an element of the offence of manslaughter on the basis that she was complicit in the killing of Rowlands, the jury first must be satisfied that when Brown handed the knife to Holt, she was then aware that it was probable that Harper, Holt and McCartin would perform unlawful and dangerous acts which would expose Rowlands to an appreciable risk of serious injury. Counsel submitted that it is unlikely that Brown would have had that specific understanding, as to the requisite constituent elements of the crime of manslaughter, at the time she was interviewed by police.

119 Counsel further submitted that, in any event, the jury could not reasonably exclude an alternative explanation for the lies told by Brown, namely, that she lied about the passage of the knife to Holt, because she was concerned that if she told the truth it might implicate Miller in a serious criminal offence. Counsel noted that at the time at which the interview took place, Brown was aware that Rowlands had died as a result of being stabbed by a knife, that the incident was probably captured by CCTV, that the knife had been located and been subjected to forensic testing, and that Miller had walked onto King Street during or after the incident and might have thereby implicated himself in it. In the course of the interview, Brown maintained that Miller had not done anything and that he had not been involved in the fight in which Rowlands was fatally wounded. In those circumstances, it was submitted, the jury could not reasonably exclude an alternative explanation for the lies told by her to the police, namely, that she did not tell the truth because she was concerned not to implicate her boyfriend, Miller.

Analysis and conclusion - incriminating conduct alleged against Brown

120 It is clear that the lies, told by Brown, were specifically directed to Brown's knowledge of how McCartin had come into possession of the knife which she knew, had been used to fatally wound Rowlands. One reasonable explanation, for those lies, was that Brown knew that if she told the truth, it would implicate herself in the fatal stabbing of Rowlands. In that connection, it is significant that when Brown was interviewed, she did not tell the police the truth, namely, that she had passed the knife to Holt, and seek to put forward some innocent or exculpatory explanation for doing so. The jury could reasonably conclude that the reason, why Brown did not give such an innocent explanation for her conduct, was because she knew that she did not have any such justification for her actions. Accordingly, the jury could reasonably conclude that Brown told lies about knowing about passing the knife to Holt, or being involved in the passing of a knife to Holt and to McCartin, because she knew that if she told the truth, she would thereby admit that she had handed the knife to Holt for the use by him and his co-offenders in the altercation that was then developing between Holt, McCartin and Harper on the one hand, and Rowlands. That is, the jury could reasonably conclude that Brown told those lies because she was aware that she had been involved in the passing of a knife to Holt with the knowledge and intention that it would be used an in an attack on Rowlands.

121 In those circumstances, the jury would be entitled to regard the lies told by Brown as implied admissions by her of an element of the charge of manslaughter against Harper, namely, that when she passed the knife to Holt, she was aware that it was probable that Holt, Harper and McCartin would use the knife in the course of an assault on Rowlands which would have exposed Rowlands to an appreciable risk of suffering, at the least, serious injury.

122 Further, in my view, it would be open to the jury to conclude that that inference is the only reasonable explanation for the lies told by Brown to the police. At the time when she was interviewed, Brown would have been well aware that she herself had been implicated in the passing of the knife to Holt. At the commencement of the interview, Brown was specifically informed that it was intended to interview her in relation to the death of Rowlands and she was given the usual caution, namely, that she did not have to say anything, but anything she said might be given in evidence. At that point Brown could have been in no doubt that she was to be interviewed concerning her own involvement in the death of Rowlands. The lies, that Brown told in the interview, if accepted as truthful, were capable of exculpating her of any criminal involvement in the death of Rowlands. In those circumstances, it would be well open to the jury to conclude that the only reasonable explanation, why Brown told the lies to the police, was because she knew that if she told the truth, that would implicate her in the killing of Rowlands, because she knew that she could not give any innocent explanation for having passed the knife to Holt shortly before Rowlands was fatally stabbed with it.

123 Accordingly, it would be open to the jury to conclude that the only reasonable explanation, for the lies told by Brown about the knife, was that she was aware that at the relevant time that the knife was passed to Holt, it was going to be used in an attack on Rowlands.

124 For the foregoing reasons I have reached the following conclusions.

125 In respect of the incriminating conduct sought to be relied on against McCartin, I have concluded that the following evidence is capable of constituting evidence that McCartin was aware that, when he stabbed Rowlands, he had not then been acting to defend himself or to defend another person or other persons: the conduct of McCartin changing and discarding his clothing in Hazelwood's room, exiting the room and walking around the hotel wearing a surgical mask, and in doing so seeking to evade police, departing from the Ibis Hotel through the fire escape, and remaining absent from the hotel until his arrest four days later.

126 I have concluded that the prosecution is not entitled to rely on the following conduct of Holt as incriminating conduct by him: changing his clothing in Martinucci's room; seeking to evade the police while walking around the hotel; and climbing or jumping over the wire mesh at the space or well on the fifth floor of Ibis Hotel.

127 In respect of the incriminating conduct alleged against Harper, I have come to the following conclusions:

(a) The prosecution may rely on the evidence that Harper changed her clothing in room 314 of the Ibis Hotel, then exited that room, entered room 337, and exited wearing different clothing, as evidence as of an implied admission by Harper that she had intentionally participated in the assault on Rowlands which had resulted in Rowlands sustaining really serious injury.

(b) The jury would be entitled to conclude that Harper lied to police in her record of interview when she said that she had not seen the knife, which had been used to stab Rowlands, until Rowlands had been stabbed with it.

(c) The prosecution may rely on those lies, told by Harper to the police, as an implied admission that she had joined in the fatal assault on Rowlands knowing that one of her co-offenders had the knife and was intending to use it.

128 In respect of the conduct of Miller, sought to be relied on by the prosecution as incriminating conduct by Miller, I have reached the following conclusions:

(a) It would not be open to the jury to conclude that the conduct of Miller, in taking possession of the knife from McCartin, constituted an implied admission by Miller that he owned the knife.

(b) It would not be open to the jury to conclude that the conduct of Miller, in changing his tracksuit pants on the train, constituted an implied admission by Miller of any of the constituent elements of charge 2 or of charge 3.

(c) It would be open to the jury to conclude that the first and fourth lies alleged to have been told by Miller to the police - namely, that when he arrived at King Street he did not have any knives on him, that he was not in possession of the knife directly before the incident, and that he did not pass the knife to Brown - constituted an implied admission by Miller that when he supplied the knife to the co-accused, he did so with the intent that it be used in the assault that was to occur on Rowlands.

(d) In respect of the second lie told by Miller to the police - that after the fight had occurred, the knife was in his bag, and McCartin must have put it there - it would be open to the jury to conclude that that lie constituted an implied admission by Miller as to an element of charge 3, namely, that when he took possession of the knife from McCartin, he was aware that it had been used in a serious criminal offence.

(e) In respect of the third lie relied on by the prosecution - that when Miller was 'pushing the glass back' on King Street, he could not see Rowlands bleeding on the ground - it would be open to the jury to conclude that Miller did see Rowlands on the ground bleeding, and that Miller denied about having done so, because he was aware that if he told the truth he would be admitting to the police that he knew that McCartin had seriously injured Rowlands with the knife when he took possession of the knife from McCartin. In that way, the prosecution may rely on that evidence as an implied admission of an element of charge 3.

129 In respect of the incriminating conduct relied on by the prosecution against Brown - the jury would be entitled to regard each of the lies, specified in the notice, as implied admissions by Brown of an element of the charge of manslaughter against her, namely, that when she handed the knife to Holt, she was aware that it was probable that the knife would be used in the course of an assault on Rowlands which would expose Rowlands to an appreciable risk of serious injury.

[1] [2006] VSCA 263; (2006) 16 VR 26 ('Ciantar').

[2] [2016] HCA 35; (2016) 258 CLR 308 ('Baden-Clay').

[3] Ciantar, 39 [39], 42 [52]; Baden-Clay 331 [72], 333 [76]; Jury Directions Act 2015 ss 18, 21.

[4] Ciantar, 48-49 [71]-[72]; Paulino v The Queen [2018] VSCA 306 [175]; Edwards v The Queen [2022] NSWCCA 22 [90].

[5] Doherty v The Queen [2019] VSCA 70 [330].

[6] Ciantar, [42]-[52], 47 [64]-[67], 48 [72]; Baden-Clay 333 [76].

[7] [2006] VSCA 86; (2006) 12 VR 401 ('Heyes').

[10] Ibid 40 [44], 42 [52], 43 [54].

[13] [1998] 2 SCR 72, 91 [32].

[15] [2017] VSCA 179.

[17] [2018] VSC 19 ('Wan').