Gale v Tasmania [2024] TASCCA 3

"In most cases a doubt experienced an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (Footnotes omitted.)

1. That passage was approved in the unanimous judgment of Gageler, Keane, Gordon, Steward and Gleeson JJ in Dansie v The Queen [2022] HCA 25, 274 CLR 651, in which their Honours said the following, at [8]:

"That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict grounds of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that 'the question which the court must ask itself' when performing that function is 'whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty', that question being 'one of fact which the court must decide by making its own independent assessment of the evidence'." (Footnotes omitted.)

1. Dansie was a murder case in which the evidence of guilt was wholly circumstantial. The Crown case was that the accused had deliberately pushed his wife's wheelchair into a pond with the intention of drowning her. The High Court said the following as to the approach required in determining the appeal, at [38]:

"What each member of the Court of Criminal Appeal needed to do in order to apply the test in M in the circumstances of this case was to ask whether he was independently satisfied as a result of his own assessment of the whole of the evidence adduced at the trial that the only rational inference available on that evidence was that the appellant deliberately pushed the wheelchair into the pond with intent to drown his wife and, if not, whether the satisfaction arrived at by Lovell J could be attributed to some identified advantage which Lovell J had over him in the assessment of the evidence."

1. Counsel for the applicant submitted that all the evidence of his post-offence conduct was equally consistent with his crime having been manslaughter rather than murder. However there can be cases in which it is open to a jury to infer that the nature of an offender's post-offence conduct supports a finding of guilt of a more serious offence rather than a less serious one. Two important statements of the relevant principles were made by Major J, delivering the judgment of the Supreme Court of Canada, in R v White [1998] CanLII 789, [1998] 2 SCR 72, 125 CCC (3d) 385. His Lordship said, at [27]:

"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 just 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."

"The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute. It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused's flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged."

1. Those two passages were cited with approval by the High Court in R v Baden-Clay [2016] HCA 35, 258 CLR 308 at [73] and [74]. In that case the accused had been found guilty by a jury of the murder of his wife, but the Queensland Court of Appeal had set aside the murder conviction and substituted a conviction for manslaughter. The High Court held that that course had not been open to the Court of Appeal, and restored the conviction for murder. When the case was before the Court of Appeal the accused had raised for the first time a hypothesis that he had delivered a blow which killed his wife without intending to cause serious harm. The Court of Appeal quashed the murder conviction on the basis that that hypothesis could not reasonably be excluded. However that hypothesis was inconsistent with evidence given by the accused at his trial. The evidence established that the accused had a motive for the killing of his wife, that he was the last person to have seen her alive, that he made false denials to the police about an ongoing affair with another woman and sought to prevent them learning of that affair, and that he took steps to conceal his wife' s body to conceal his part in her death. The High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said, at [74]:

"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."(Footnote omitted.)

1. In a footnote at the end of the first sentence of that passage, the Court referred with approval to the decision of the Victorian Court of Appeal in R v Ciantar [2006] VSCA 263, 16 VR 26. In that case a motorist had been found guilty by a jury on a charge of culpable driving causing death. On appeal, one of his contentions was that the judge had misdirected the jury concerning evidence of his flight from the scene of a fatal collision, and that the evidence of flight was equally consistent with a consciousness of guilt of less serious driving offences, including a drink driving offence. The Court of Appeal (Warren CJ, Chernov, Nettle, Neave and Redlich JJA) said the following at [39]-[40]:

"39 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'.

1. 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." (Footnote omitted.)
2. It is clear from the verdict of the jury that they must have rejected the applicant's evidence to the effect that he did not inflict the injury that caused the death of the deceased, and was not in the same room at the time. If those assertions were not true, it must follow that the applicant alone knew how the deceased met his death, and yet failed to give evidence of what truly happened. In that situation, the High Court's decision in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 is relevant. That case concerned a murder trial. The accused had set off with two other people in their boat. The other people were never seen again but he remained in possession of the boat. He was charged with their murder. The case against him was entirely circumstantial. He chose not to give evidence. The trial judge directed the jury that they could more safely draw an inference of guilt from the proved facts since he had elected not to give evidence of relevant facts which must have been within his knowledge. The High Court held that that direction was appropriate.
3. In this case, the applicant did give evidence, as did the accused in Baden-Clay. However the principle discussed in Weissensteiner is relevant because he chose not to give evidence as to the true cause of death when that was solely within his knowledge. In Weissensteiner, Mason CJ, Deane and Dawson JJ said the following, at 227-228:

" ... in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."

1. That passage was cited with approval by the High Court in Baden-Clay at [50]. In deciding whether a rational hypothesis exists consistent with the applicant's crime having amounted to manslaughter and not murder, any such hypothesis can be more readily rejected on the basis that the applicant did not give evidence as to what truly happened.

1. By virtue of the second limb of s 157(1)(c) of the Criminal Code, the crime of murder can be committed by means of any unlawful act which the offender ought to have known to be likely to cause death in the circumstances, even if that offender did not wish to cause death or bodily harm. The evidence of the blood of the deceased found in the unit strongly supported inferences that that blood must have come from wounds to the deceased caused by the applicant, and that the applicant ought to have known that such wounds would be likely to cause death. The greater the amount of blood spilt, and the wider the distribution of spilt blood, the less reasonable any hypothesis consistent with manslaughter becomes. The evidence that the applicant cut off the dead man's head and threw it into the Mersey River tends to support an inference that he must have inflicted one or more fatal injuries to the man's head. Indeed he gave evidence that there were two wounds to the man's head, and implied that one of those wounds (though not inflicted by him) had been the fatal one. One can infer that he feared that he would be more likely to be found guilty of murder if the police found the head than if it was alleged that he had cut off the head and got rid of it.
2. The evidence of the deceased's defensive injury and the evidence of the hole in the kitchen wall tended to indicate the extent of the violence that had led up to the death of the deceased.
3. The evidence as to the post-offence conduct was extraordinary. The lengths that the applicant went to in disposing of the carpet, underlay, couch, table, chairs and head compel an inference that his conduct towards the deceased must have involved a level of violence such that he either knew or ought to have known that his acts were likely to cause death in the circumstances. That inference is strengthened by the evidence of callousness in his post-offence conduct, particularly his living rent-free in the deceased's unit, at the scene of the crime, for nearly three months, stealing and disposing of his property, telling lies about his disappearance, and denigrating him.
4. Having regard to the whole of the evidence, particularly the evidence as to the state of the deceased's unit, the defensive injury, and the applicant's post-offence conduct, it was clearly open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder, if only on the basis of the second limb of s 157(1)(c). The only reasonable inference to be drawn from the whole of the evidence is that applicant killed the deceased by means of an unlawful act that he knew or ought to have known to be likely to cause death in the circumstances.

1. For these reasons I would grant leave to appeal, but dismiss the appeal.

1. I agree with the Chief Justice, and would join in the orders proposed by his Honour.

1. I agree with the Chief Justice and join in the order dismissing the appeal.