1 I have had the great advantage of reading in draft the reasons for judgment of Neave JA.

2 Like her Honour, I consider that the appeal should be allowed on Grounds 2(b) and 2(c), because the judge's directions as to consciousness of guilt were apt to mislead the jury to treat the whole of the applicant's record of interview as evidence of consciousness of guilt.

3 Much of the responsibility for that falls at the feet of the Crown. This is one more case in a succession of many in which it has been necessary to order a re-trial because of the Crown's failure to identify precisely each lie upon which it relies as evidence of consciousness of guilt and the acts facts and circumstances on which it relies as demonstrating that it was a lie and bespoke consciousness of guilt.

4 It is a problem, however, which might have been arrested. Neave JA has set out the four step process articulated in Ciantar[1] by which lies evidencing consciousness of guilt may properly be identified and subjected to acceptable jury directions. If that process had been followed in this case, the difficulties would likely have been avoided

5 Like Neave JA, I would reject Grounds 1 and 2(d) and 4, for the reasons which her Honour gives. But, unlike her Honour, I would uphold Ground 3.

6 As will be seen, it is concerned with the admissibility of video clips of the applicant and the deceased frolicking together drunkenly while committing obscene acts with or in the presence of each other. The judge admitted the video clips into evidence, over objection, as demonstrating the nature of the relationship between the applicant and the deceased.

7 With respect, however, the aspect of the applicant's and the deceased's relationship depicted in the videos could not have been relevant unless it tended to

make more or less likely the offence of homicide with which the applicant was charged.[2] For example, if the videos suggested that the applicant and the deceased had a violent or tumultuous relationship, they would have been relevant in that way.[3] But I do not see why, and the Crown was unable to explain how, the applicant's propensity when drunk to engage willingly, and apparently amicably, in obscene camp behaviour with the deceased made it more or less likely that the applicant murdered the deceased.

8 It would have been different if the applicant were able to invoke the common law defence of provocation. One of the suggestions floated by the defence in the course of trial was that the applicant's conduct in striking the deceased was a reaction to an unwanted homosexual advance by the deceased to the applicant. If the defence of provocation were still available, evidence that the applicant previously engaged in camp behaviour with the deceased would be admissible as tending to rebut that defence.[4] But the defence of provocation has been abolished,[5] and so there was no issue of provocation to which the evidence could have been directed.

9 Furthermore, it is really not open to doubt that video clips were prejudicial to the applicant, because they showed him willingly engaging in varieties of misconduct which, to most people, would present as revolting.

10 It follows, in my view, that the judge ought not to have admitted the videos.

11 The applicant, Aaron James Johnstone, was convicted by a jury of the murder of Phillip William Higgins. On 19 December 2008, the learned trial judge sentenced him to 18 years' imprisonment and fixed a non-parole period of 14 years. He now

12 The circumstances of the victim's death were as follows. Mr Higgins was a disability pensioner. He was a small and slightly built man aged 46. The applicant was aged 24 and was much bigger and stronger than the victim. There was no dispute that Mr Higgins died as a result of an assault by the applicant, who punched and kicked the victim, dropped a platypus statue on his head and hit him with an office chair.

13 When Mr Higgins died, the two men, who had been friends for some years, had been sharing a rented house in Seaford for about two or three months. They had previously shared a house in 2003 and 2004 in Dandenong, an arrangement which ended when the applicant went to live in the Northern Territory. Both men were very heavy drinkers and had been drinking for a considerable time before the applicant assaulted the victim. In the blood sample taken from the victim's leg, his blood alcohol content was 0.32 per 100 milligrams. In the sample taken from the vitreous humour in his eye, which was said to be more accurate, it was 0.37.

14 After the assault, the applicant went to bed. When he woke up and discovered that the applicant was dead, he rang a friend, Daniel Fulton, who notified the police. When the police came to the premises, he was on the phone to an emergency services operator.

15 Although Mr Johnstone pleaded guilty to manslaughter at the trial, the Crown contended that he was guilty of murder because he had intended to kill the victim or inflict really serious injury on him. The Crown case was that the necessary mens rea for murder could be inferred from the significant force used in the assault, the number of blows and injuries, the five minute duration of the beating, the continuation of the assault after the victim fell to the floor and the applicant's failure to provide the victim with any assistance after having savagely beaten him. The Crown also relied on answers given by the applicant in his police interview as

evidence from which consciousness of guilt of murder could be inferred. I describe these answers in more detail below.

16 The defence did not contend that the accused was so drunk that he was incapable of forming an intention to kill or inflict really serious injury, but rather that the applicant had not intended to kill or seriously injure the victim. The defence case was that the applicant had lost his temper while 'grossly intoxicated' and had attacked the victim in response to his sexual advances, in a context in which the victim had previously made sexual comments and overtures to the applicant and had been told by the applicant to stop doing so. There was a reasonable doubt as to whether the accused had intended to kill the victim or inflict really serious injury on him. In response to the Crown's reliance on the applicant's alleged lies as evidence of his consciousness of guilt, defence counsel contended that the applicant had gaps in his memory of the assault because he was very drunk when he attacked the victim.

17 The applicant did not give evidence at his trial.

18 In his police interview, he said that he and Mr Higgins had gone out and returned home together on the evening of 22 September 2006. Mr Higgins went to bed, leaving the applicant watching television. At about 10.45pm, the victim came out of his bedroom. He was naked and made an offensive and sexually provocative remark to the applicant. The accused said he 'lost it' and began to hit the victim.

19 In describing the attack, he said he had punched the victim on the right side of his face with a closed fist with medium force, but the victim got up and continued to make sexual comments. The applicant said that he then punched the victim in the head three or four times and split his lip, causing the victim to fall to the ground. The applicant, who was not wearing any shoes, kicked the victim while he was lying on the ground. At that stage, the victim was still conscious. The interviewer referred to a comment the applicant had made about a platypus statue and he was asked how that had come into the argument. The applicant answered 'I just seen it. I picked it up and I just cracked him over the head with it'. When asked whether he had only dropped the statue on the victim's head once he replied '[y]ep'.

20 Later in the interview, the applicant denied having thrown the statue at the victim, but said he had picked it up and dropped it. It had struck the victim on the head and knocked him unconscious. The applicant said that the statue weighed about five kilograms,[6] and that he had wanted to drop it on the victim's head. When asked what he wanted to accomplish by dropping a heavy statue on the victim's head he said he 'wasn't planning on accomplishing anything really'. He later said that he had just wanted to 'knock him out' and 'to make him unconscious'.

21 After the interview resumed, the applicant was told that the police had seen an overturned office chair at the premises and was asked if it had been broken. The applicant said that it was not broken but 'I may have kicked it across the room last night'. He said he did not remember whether he did or not. He was then asked whether he had used the office chair 'at any point' during the assault. He replied '[n]o'.

22 His account of the assault was put to him again and he was asked whether he had done anything other than punching the victim in the head and dropping the platypus statue that might have caused the injuries to the victim. He replied '[n]o, not what [sic] I can recall'.

23 He was asked whether it was possible that he used the platypus on more than one occasion or struck the victim with any other object in the house and said '[n]o, I think I definitely only used the platypus once. I'm pretty sure' and that he did not remember picking it up and using it again.

24 After he had been questioned about his use of the platypus, he was asked whether he had used 'any other weapons aside from your fists and your foot?'. He again denied doing so and denied having any intention to murder Mr Higgins.

25 After the assault the applicant washed his hands in the kitchen and went to bed.

26 The applicant was asked whether the victim's comments were any worse than on any previous occasion, when the applicant had said he had been making sexual remarks five times a week. He replied '[n]o, it wasn't a conscious choice not to ... tolerate it. It was just bang. Just like dynamite. Everyone's got breaking points ...'.

27 Dr Michael Phillip Burke, a forensic pathologist, gave evidence about the victim's injuries and their likely cause. The injuries ranged from superficial abrasions and lacerations caused by the use of blunt force, to more serious fractures. The victim's upper and lower jaw were fractured, as was the middle third of his face. He also had a fractured hyoid bone, the most likely cause of which was forcible trauma to the neck. He had lineal injuries to the shoulders and chest which may have been caused by blows with the office chair and he had six fractured ribs which resulted in the puncture and collapse of one of his lungs. He had a traumatic subarachnoid haemorrhage and a thin film of subdural blood to the brain. There was no objective evidence that the victim had fallen as a result of a punch and hit the back of his head.

28 Dr Burke gave the following evidence about the cause of the victim's various injuries in examination in chief:

COUNSEL: Given the patterned injuries that you've described on the chest and shoulders of the deceased - and you've made comments about the office chair in relation to that?

WITNESS: Yes.

COUNSEL: Do you say that those distinct lineal, parallel lineal qualities could've been caused by the platypus?

WITNESS: I would've thought it's impossible.

COUNSEL: Impossible?

WITNESS: Yes.

COUNSEL: What do you say as to the platypus causing - could the injuries have occurred with one blow by the platypus statue?

WITNESS: I've made a comment in relation to that issue in my report, and in comment No 2 I've stated the post-mortem examination showed a constellation of abrasions, lacerations and bruises to the head and neck. From the simple measurement of the spread of the injuries to the deceased's body and comparing this with the dimensions of the platypus statue, it is my opinion that the injuries seen could not occur with one blow by the platypus statue, so no.

29 His Honour asked Dr Burke about the degree of force required to inflict such injuries and he said:

The most - I was going to say significant, but the injuries that would cause the most or require the most force would be fractured ribs and the facial fractures. The facial fractures are the sort of things that one can see, unfortunately, in the CBD on the weekend when someone punches someone to the face. They may even get a fractured jaw, fractured lower jaw, fractured upper jaw. It is a significant amount of injury, but it's by no means extreme.

30 As to the lineal injuries to the victim's chest and shoulders, he said that '[i]t's always hard to quantify the amount, but I'd be saying mild to moderate amount of force'.

31 In cross-examination, Dr Burke agreed that it was not possible to say how many separate applications of force were involved in causing all of the injuries. It was also possible that one blow with the platypus could cause more than one injury.' because it had 'a number of different projections' on it.

COUNSEL: Within the parameters of the injuries that you've described, you of course can't say that there was necessarily more than one blow with this platypus object, can you, and as I understand it, you're not saying that?

WITNESS: No, I'm not. I'm saying that the injuries are not consistent with one blow by the platypus.

33 The issue was raised once again when Dr Burke was re-examined:

COUNSEL: You said that the injuries that you noted or observed were not consistent with one blow with the platypus?

WITNESS: The totality of injuries?

COUNSEL: Yes?

WITNESS: Absolutely.

COUNSEL: From the various injuries that you did observe, are you able to say how many blows occurred via the platypus?

WITNESS: No I can't.

HIS HONOUR: I think you misinterpret that the doctor says. I think what he says is because of the existence of the lineal abrasions it can't all be from the platypus?

WITNESS: And also, as I measured the spread of the injuries at the autopsy and the spread of the injuries was beyond the dimensions of the platypus, so clearly they couldn't have occurred from one application by that statue. It must have been at least more than one. And then we have the issue of the linear abrasions, which could not have been caused by that.

34 Sergeant Paul Kenny Dacey, a Senior Crime Scene Examiner attached to the Victoria Police Forensic Services Centre, gave evidence that an overturned and broken office chair weighing just over five kilograms was found at the crime scene. The chair had blood stains on it and was missing a castor. A single castor which appeared to belong to the chair was found on the tiled porch area. After taking measurements of the base of the arms of the chair and comparing the base of the arms of the chair with parallel-shaped bruises on Mr Higgins' body, he concluded that the bruising on the victim's left shoulder was similar in size and shape to the area where the arms met on the underside of the swivel chair. Similar conclusions were reached in relation to the right shoulder.

35 The platypus statue weighed just over eight kilograms. It was found on the mantelpiece and fragments which appeared to come from the statue were found on the ground near the victim's shoulder, along with some fragments of teeth. There were visible blood stains on the statue. There were empty Smirnoff vodka bottles, stubbies and a beer can on a coffee table.

36 Dr Rebecca Heyes, forensic scientist, gave evidence that the pattern of blood-stains suggested that the victim was lying down whilst bleeding. There were blood-stains on the surfaces of the chair and on the horizontal underside of the central panel on each of the five legs of the chair. The injuries were consistent with the victim having been hit with the chair while lying on the ground. However she accepted in cross-examination that it was a possibility that he was standing up when some of the injuries were inflicted.

37 Mr Dimitri Gerostamoulas, the chief toxicologist at the Victorian Institute of Forensic Medicine, gave evidence about the effect of consumption of alcohol on thought processes and memory. In cross-examination, he said that a person with a blood alcohol level of 0.15 or more would have a reduced capacity to reason about cause and effect, and that intoxication at this level could result in confused thinking and a fragmented memory of events occurring while the person was drunk. Even if the person were a regular drinker, their motor skills, coordination and memory could still be affected.

38 In re-examination by counsel for the Crown he elaborated as follows:

COUNSEL: If memory was affected, would you expect a total blank as opposed to specifically recalling certain amounts of an event?

WITNESS: I don't know. I can't comment on that specifically.

COUNSEL: If one was able to specifically recall certain aspects of an event, does that tell you anything about whether or not the alcohol has affected their memory?

WITNESS: It might affect some instances where they can't remember certain things. That depends, again, on the concentration of alcohol at that point in time where they're trying to recall things. So, the level of alcohol may be higher or lower, but if it's lower, more likely to be able to recall things, but at higher concentrations maybe that's not the case.

COUNSEL: If a person is able to, say, lift a heavy weight, an eight kilogram weight and then position it and drop it, go and wash one's hands to rid the hands of blood, to then go into a correct bedroom as opposed to someone else's bedroom, undress, place the clothes in a specific spot and then go to bed, into your correct bed, get under the covers as opposed to just collapsing. Does that tell you anything about the effect, if any, that person is under in terms of alcohol?

WITNESS: No, because some of those effects - some of those tasks are learned tasks, so the concentration of alcohol may be higher or lower in that person at that time, but they may be learned tasks, washing hands, going to bed, they're things that someone may normally do and therefore not be affected significantly by alcohol.

COUNSEL: Would you expect a person significantly affected by alcohol the next morning to almost his first thought remember an assault or an event the night before?

WITNESS: They may be. They may be able to. It depends upon the individual and their normal function.

39 Mr Maxwell Jones, a scientist employed at the Victorian Police Forensic Sciences Centre gave evidence that the upper surface and under surface of the office chair and the castor found separately from the chair had blood on them and that there were a number of airborne blood deposits on the lower section of the central shaft of the chair. The blood found on the chair matched the victim's DNA profile. Mr Jones was also asked about the use of the Platypus statue:

COUNSEL: Mr Jones, in your opinion the location and appearance of blood stains on the statue, do they indicate how many forceful events this statue has been involved in?

WITNESS: Yes. Well, I formed the opinion that it was possibly involved in all - or directly one forceful event and that would be through the formation of the staining underneath, the under surface of the statue, and also the fact that it has deposits of blood on the upper surface, meaning - what appears to be some of them at least seem to be spatter-type stains - would indicate that the statue was in the vicinity of when some other forceful event occurred. So not necessarily being involved itself but maybe some other impacting surfaces, impacting situation taking place where the statue was located in proximity to that. So it would indicate possibly at least two forceful events, I would say.

COUNSEL: What about the blood deposit on the chipped or damaged area; does that indicate - - ?

WITNESS: Well, yes. The fact that if - well, it depends, I suppose, how the statue was damaged. If it had been broken in a forceful situation, well then that might indicate some initial force, but also the fact that some deposits or blood was deposited on the newly exposed area could indicate a second force. There was one or two stains on that exposed area which were quite small and typically the obtaining of the smaller blood stains in the vicinity of 1 millimetre or so in size does tend to indicate a forceful event of some type, so again there is an indication that possibly two - two forceful events at least occurred with this statue either being directly involved or in close proximity to a forceful event.

40 The applicant and victim visited Dianah Pascoe at her home at about 8 pm on the night of the attack. She gave evidence that both men were drunk when they called to visit her and said that the applicant was stumbling and slurring.

41 Andrew Stud, Louise Bell, Justine Zanella and Jake Kinkella visited the men's home for about half an hour at 9 pm on the evening that the victim died. Three of these witnesses said that both men were affected by alcohol. Ms Zanella said that the applicant appeared to have had a few drinks but was walking normally and able to converse. Ms Bell said that the applicant was drunk but not so drunk he could not walk and talk. Both referred to a 700ml bottle of vodka found open in the kitchen in which only one quarter of its contents remained.[7] Jake Kinkella, whose statement was read into the evidence, said that both men were drunk. Mr Stud said only that both men were 'all right' at the time of the visit.

42 There was evidence that the victim had a habit of making sexually explicit remarks to male friends, particularly when he was drunk. Craig Williams, who was a friend of the applicant's from a young age, said that, when the applicant was living with the victim in Dandenong, he had observed the victim making comments of a sexual nature and directing them at the applicant. Daniel Fulton, who had been good friends with the applicant for 10 years, said that the applicant had previously complained about being propositioned by the victim and agreed during cross-examination that '[the applicant] wasn't happy and ... didn't like it', and was 'sick of it'.

43 In response to a question whether the applicant had complained to him about the victim 'coming on' to him, Mr Stud said he had not. In cross-examination he said that the applicant was not a close friend and would not confide in him. Scott Lamin, who had been friends with the victim for 18 or 19 years, said that in late July 2006, he and his partner had dinner with the applicant and the victim in a pub and that they all went to a gay bar afterwards. James Nesci said that the victim had a tendency to sexually proposition people when he was drunk.

44 Other evidence was led by the Crown to establish the nature of the applicant and victim's relationship. I refer below to videos recorded on a mobile phone camera which depicted the applicant, victim and Mr Stud in a drunken state at the house in Seaford. These were tendered through Mr Stud and said to exhibit a level of 'sexual bravado'. Ms Bell also gave evidence that, on previous occasions when the applicant was drunk, she had seen him running around the house in his underwear with Mr Stud while music was playing.

The Learned Trial Judge erred in holding that the alleged lies in the applicant's record of interview were capable of being relied upon by the Prosecution as consciousness of his guilt of the crime of murder.

46 In his opening address, the prosecutor did not explicitly rely on statements made by the applicant during his police interview as evidence from which his consciousness of guilt of murder could be inferred, although he said it would be the Crown case that the accused had understated the sustained nature of the attack. In the course of the trial, counsel for the Crown foreshadowed an intention to rely on the applicant's deliberate omission of the reference to the chair and his downplaying of his role in the assault as consciousness of guilt evidence.

47 The defence case was that the accused did not lie in his police interview, but had simply forgotten all the details of the attack. This was said to be supported by evidence about the amount of alcohol consumed by the victim, the evidence that he was drunk, the expert evidence of Mr Gerostamoulas and the fact that the accused said in his police interview that he did not recall that four people had visited the house earlier in the evening.

48 After discussion with counsel, his Honour ruled that at least the alleged lie about the use of the office chair was capable of being an implied admission of guilt of murder. He said that:

Although the evidence is not very clear, it would be likely that the jury would accept that the accused was drunk on this night. The accused's memory appears to be impaired to the extent that he does not remember the visit of the four people to the house on Friday night including Stud. He does, however, purport to give a detailed analysis of the way in which he beat the deceased ... It seems in that portion, while admitting the possibility, the accused was expressing some confidence about what happened, and when I say expressing the possibility, expressing the possibility that there are things that have happened other than things that he has described.

In my view, when looked as a whole, it would be open to the jury to conclude beyond reasonable doubt that the accused deliberately understated what he had done.[8]

The omission of any mention of the office chair is such a telling circumstance that its omission, together with the other matters in relation to which the accused attempts to lessen his involvement in the crime require an Edwards direction. I am satisfied that the material is capable of being used to show consciousness of guilt ...

The other matter that I would underline is, of course, the defence position in relation to the material is that the jury could not be satisfied beyond reasonable doubt that the material is a lie, that it does misrepresent the position. It is simply a matter that the accused man has forgotten. The jury will plainly and in the clearest terms be instructed that it is only in circumstances if they are satisfied beyond reasonable doubt that the omission and denial of the use of the mention of the chair is done as a deliberate lie that they can use it for any purpose whatsoever.[9]

50 Counsel for the applicant made two submissions in support of ground 1.

51 First, it was submitted that the evidence of the applicant's intoxication at the time of the assault, coupled with Mr Gerostamoulas' evidence that substantial alcohol consumption could produce gaps in memory, meant that it would not have been open to the jury to have been satisfied that the applicant's account was deliberately false.

52 I would reject that submission. One possible explanation for the applicant's failure to refer to striking the victim with an office chair was that he simply did not recall doing so. However, when read in the context of the whole interview, I consider that it would have been reasonably open to the jury to find that the applicant's omission of reference to use of the chair and his later denial of having done so, was capable of supporting the inference that he lied because he was aware that, at the time of the assault, he had intended to kill or seriously injure the victim.

53 R v Cuenco[10] deals with reliance on an omission as evidence of consciousness of guilt. Nettle JA said that:

An accused's conscious omission of events from a detailed account that he provides may provide a basis for drawing the inference of a consciousness of guilt and, if an accused makes a positive statement to police that he cannot remember an event, or that he has no recollection of it or the details of it, it may well constitute evidence which in combination with other evidence is capable of amounting to evidence of consciousness of guilt.[11]

54 In R v McMahon,[12] this Court said that, in considering whether an alleged lie is capable of being treated as an implied admission of guilt, '[i]t goes without saying that each case must depend upon its own circumstances, including the nature and materiality of the statement which is rejected by the jury as untrue'.[13]

55 Similarly in R v Lam[14] this Court said that:

The [alleged] lie, a species of circumstantial evidence, is to be considered in the context of all the evidence. Whether it amounts to an implied admission of guilt will depend upon the nature of the lie, the circumstances in which it was made, the nature of the offence in question and the other evidence in the case.[15]

56 The applicant gave a detailed account of hitting and kicking the victim in his police interview, remembered what he wearing during the assault[16] and remembered that he was not wearing shoes when he kicked the victim. He also said he recalled dropping the platypus statue on the victim's head.

57 In the circumstances of this case, I do not consider that the jury must necessarily have had a reasonable doubt about whether the lie about use of the chair was deliberate. His Honour gave an Edwards direction to the jury. The initial Edwards direction did not specifically refer to the fact that the accused may have forgotten using the chair because he was drunk, but that matter would clearly have been in the jury's mind. Later in the charge, his Honour referred to the fact that the accused man may have lied because it was 'simply a piece of patchy memory'. Although this comment was not specifically related to the earlier Edwards direction, I consider that the jury would have clearly understood the necessity to decide whether the lie was deliberate or simply a lapse in memory caused by the applicant's consumption of alcohol.

58 Secondly, counsel for the applicant submitted that the alleged lie about use of the chair was incapable of being evidence from which a consciousness of guilt of murder could be inferred. Even if the jury had accepted that the applicant had lied, the lie might have been attributable to his consciousness of his guilt of manslaughter rather than murder. Defence counsel put this argument at the trial and it was rejected in the trial judge's ruling.

59 In R v Ciantar,[17] a bench of five declined to follow the previous decision of this Court in R v Heyes[18] and held that it was not inappropriate for lies or other post-offence conduct to be left to the jury as evidence of consciousness of guilt of a particular offence in circumstances where the accused might have lied because he was conscious that he had committed a lesser offence.[19] The Court said that:

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.[20]

60 The relevant question is therefore whether the alleged lie, when considered in the context of the whole of the evidence, was 'equally consistent with two or more possible offences' or 'otherwise intractably neutral'. If the alleged lie can be so characterised, it would not be capable of being evidence of consciousness of guilt and the Crown would not be permitted to rely on it for that purpose.

61 In his jury charge, his Honour told the jury that:

One of the things you might think in this case is this, and it is almost certainly so. That the record of interview at the very least amounts to a confession for manslaughter. It would follow that if there are deliberate lies, deliberate omissions, deliberate omissions, deliberate omission of the chair, that lie is told to avoid responsibility for murder.

62 I doubt whether that direction was correct, although it was not relied upon as a ground of appeal. The applicant had not admitted to manslaughter at the time of the interview, although he did implicitly admit that the victim died because of his actions. He might have lied to avoid responsibility for the death, without having any clear understanding of his potential liability for manslaughter or the distinction between that offence and murder. In these circumstances, it would have been better for his Honour to tell the jury that the applicant might have lied because he feared being held responsible for some other wrongdoing, rather than because he was aware that he had intended to kill or inflict really serious injury on the victim when he assaulted him.[21] Such a direction has been held to be 'desirable' but not essential.[22]

63 In my opinion, that direction did not result in a miscarriage of justice because the judge clearly directed the jury that they had to be satisfied that the accused lied because of his consciousness of guilt of 'the crime you are considering', which was murder.

64 The lie about use of the chair was not 'intractably neutral' in the sense described in Ciantar. The applicant's denial of the use of the chair, when combined with his conduct in kicking and punching his much smaller and lighter victim for five minutes, dropping the platypus statue on the victim's head and then going to bed without providing him with any assistance, was circumstantial evidence from which it could have been inferred that he intended to kill or inflict really serious injury on the victim. The jury might have made that inference from the nature of the beating alone, so that arguably the alleged lie was no more than a 'strand in a cable' of a body of circumstantial evidence. The trial judge correctly told the jury that if their reasoning that the accused had deliberately lied was a significant part of their reasoning towards his guilt, they had to be satisfied beyond reasonable doubt that the Edwards requirements set out in his charge had been met.

65 I therefore conclude that his Honour correctly ruled that the Crown could rely on the alleged lie about use of the chair as evidence of consciousness of guilt, provided that he directed them appropriately on the use of that lie. (The adequacy of the Edwards direction at direction was challenged by grounds of appeal 2(b) and (c), which are dealt with below).

67 It is unnecessary to deal with ground of appeal 2(a), as this ground was abandoned at the hearing of the appeal.

68 Grounds 2(b) and (c) can be dealt with together. They are as follows:

1. The Learned Trial Judge erred in his directions as to consciousness of guilt in that he:

1. did not adequately identify those purported lies capable of founding the applicant's consciousness of guilt;

1. did not direct the jury to consider each lie separately;

69 The process to be followed where the Crown relies on lies or other post-offence conduct as evidence of consciousness of guilt was described in Ellis v The Queen[23] as follows:

it is ordinarily necessary for the trial judge:

(a) To identify precisely each such lie.

1. To identify the evidence which is capable of demonstrating that it is a lie.

1. To identify the issue in respect of which the Crown relies on the lie as evidence of consciousness of guilt.

1. To identify the acts facts and circumstances which are said to show that the lie bespeaks consciousness of guilt for the purposes of that issue.

As was also explained in Ciantar[24] the identification of lies said to evidence consciousness of guilt is preferably undertaken before the commencement of evidence and, in any event, before the commencement of final addresses, by requiring the Crown, in the absence of the jury, precisely to delineate each lie sought to be relied upon as evidence of consciousness of guilt (so that the judge can determine whether the lie so identified is capable of evidencing consciousness of guilt and, if it is, can later define the lie for the jury in the course of summing up).[25]

70 I have already referred to the discussion between the judge and counsel about the ability of the Crown to rely on alleged lies as evidence of consciousness of guilt. Unfortunately the prosecutor did not identify the relevant lies with precision. He said that 'there's no mention of the chair and ... that's a deliberate omission on the part of the accused. I'll be saying that this omission is an attempt to deliberately understate or downplay the extent of his involvement'. He then said that 'the second thing would be the number of blows conceded by the accused. I'm referring to a few kicks and four or five punches and the one use of the platypus'. Thus, at that point of the trial, it appears the prosecutor was relying on two distinct lies.

71 The judge's ruling also referred both to the answers given by the applicant in response to questions about use of the platypus statue and his denial of the use of the chair, although ultimately it appears to have related only to the alleged lie about use of the chair.

72 In his closing address to the jury, the prosecutor referred to the evidence from which the applicant's consciousness of guilt of murder could be inferred. He said the following:

In other words, these statements in the record of interview or omissions, non-statements if you like, misrepresentations, and I'm talking about him not including, not referring to the chair, and specifically denying the use of the chair when the police officer asked him about it, are sought to be relied on in this case as constituting evidence of guilt of a particular sort. Essentially it is said on behalf of the Crown that what wasn't said by the accused in the record of interview, in other words, misrepresentations or untruths that he was telling in terms of the chair, and in terms of the downplaying of the rest of the assault, were told because he knew he was guilty of murder; that is, that he had a consciousness or awareness of guilt of that crime.

...

In respect to this evidence, you will be told that you would be entitled to use them in a particular way, should you see fit. If you consider that the reason for the deliberate omission, or deliberate non-reference to the chair, and deliberate downplaying of the extent of the beating, is that the accused man had an appreciation of the fact that he was guilty of the crime of murder, and that is why he understated the use of implements; then you could consider this evidence indicating the accused's consciousness of his guilt, as evidence of guilt.

73 It will be noted that, although counsel for the Crown relied primarily on the alleged lie about use of the office chair, he also referred more generally to the 'deliberate downplaying of the extent of the beating'.

74 There was a similar ambiguity in the judge's jury charge. His Honour began by telling the jury that any lie told by the applicant could be relevant in assessing his credibility. He continued:

The second way in which you may be able to use a lie is [as] an unspoken or implied admission by an accused person that he is responsible for a particular crime. You may be able to use a lie in this way if you can reason that the accused told a deliberate lie, and here that would mean in particular the omission of the mention of the chair and the ultimate denial of the use of the chair, and remember what the defence say; the defence say, this is just a gap in his memory, he has forgotten that because he has otherwise been frank about these matters.

But if you found that it was a deliberate lie, and the only reasonable explanation for him telling that lie was because he believed that he had committed the particular crime, here the crime of murder, and he believed that by telling the truth, he would be implicated in it so, by telling the lie the accused admitted his responsibility for that crime. In that situation the accused would not have exclusively admitted his responsibility for the crime. You would be drawing an inference that he had admitted responsibility for the crime from the fact that he told a lie, and you will remember in that regard what I have already told you about inferences. It is important to note that finding an accused lies shows that he has implicitly admitted responsibility for the crime is not the same as finding an accused guilty of that crime. At the most, lies prove no more than that the accused believed he was guilty of that crime.

In other words, just because you find that the accused lied because he believed that the truth would implicate him in a crime does not mean that you must necessarily find him guilty of that crime. It may be the case, for example, that he was mistaken about having committed the crime. Perhaps he committed the relevant acts but did not have the appropriate mental state, or he may have some other legitimate defence, although in this case it is the mental state defence which is put. The lie is just one piece of evidence that can be used in making your final decision about whether or not the prosecution has proven guilt beyond reasonable doubt.

I now want to look at the lies from which you may be able to infer that the accused admitted his responsibility for the crime that he has been charged with. You can only use the lie that I tell you about in this way. There is only the following alleged lie. The accused lied when he denied the use of the office chair. The reason that he lied was that if he admitted the use of the chair; the case that he intended to inflict really serious injury or death was much stronger. The same can be said for generally downplaying his role, for instance, as to the number of times the platypus was used and before getting to that position you would have to be satisfied of the proposition that the platypus was used more than once and that the accused deliberately lied about that circumstance. That is a matter about which you would need to exercise great care because of what has been said by the experts in the case. But when you look at the record of interview as a whole, if you were satisfied that the accused man had deliberately underrated what had happened, of which really the chair and the platypus and the whole of the circumstances are part, then you could use the material in that way.

One of the themes that has occurred in this case about the use of the platypus is that it has not always been described in the same way. At Question 114, for instance, when he is being asked some questions about the use of the platypus, the accused man said in answer to the question, 'Can you recall how that came into the argument?', 'I just seen it. I picked it up. I just cracked him over the head with it' is what he says at that stage. Later at Question 193, where he has just described for the first time the second attack with the fists and the kicking, 'And kicking him?' 'Yep'. 'And what was he saying?' 'He wasn't saying a great deal at that time. And I just picked up the statue and I cracked it over his head, and rant and raved'. It is then after that in a short period of time, only about ten questions after that, that the accused man says, 'So what have you done with that?' 'Got that and just dropped it on his head. I didn't throw it, physically. I just dropped it.' 'Right. When that hit him or struck him on the head did you still have possession of it? When you say "dropped" do you mean you still held - - -?' 'I held it over the top of him and let go'. 'Prior to that do you think he was awake?' 'Yeah. He was conscious at that stage still'. 'And from how high up did you say you dropped it?' 'I'd say a metre, a metre and a half'. 'OK, and once the statue struck him - - -?' 'Yep'. 'To the head, was there any response from him?' 'No, he was out cold'.

It is for you to decide in dealing with those matters whether with that and some of the changes he makes about the numbers of kicks and so on that he has deliberately altered his version of what happened so that he can say he has done so deliberately for the purpose of avoiding his guilt. But I would say this to you as a caution about all that_. I think you are much better concentrating for the purposes of this issue solely on the issue of the office chair. The other matters you might find on a fair reading of the whole record of interview are simply too complicated to say that is what he is doing_. You might in terms of assessing the whole view you take of the record of interview think about a change from 'I cracked him over the head with the platypus' to 'I dropped it on his head' and what the meaning of that was, but be very, very careful about drawing any adverse inference going to the question of guilt directly from it.

But in relation to the office chair, but remember, what would have to underlie, it has got to be a deliberate lie. That is, turned your mind to it. Thought it out, and decided in the interview, 'I will not tell them about the chair'.

One of the things that you might think in this case is this, and it is almost certainly so. That the record of interview at the very least amounts to a confession for manslaughter. It would follow that if there are deliberate lies, deliberate omissions, deliberate omission of the chair, that lie is told to avoid responsibility for murder. Remember now it is only that lie that I have told you about that you could use as being an implied admission.[26]

75 His Honour then set out the four requirements which an Edwards warning must satisfy. In describing the first two requirements, he said:

First, you must be satisfied that the accused actually made the statement alleged by the prosecution to be a lie, and there is not any doubt that the accused man said he did not use the chair. Second, you must be satisfied that the statement was a deliberate lie. That is, you must find the statement was untrue and that the accused knew it was untrue at the time it was made.

There is a difference between rejecting a person's statement and finding that he deliberately lied. Sometimes people make mistakes or get confused or genuinely cannot remember a fact. While what they say may be wrong, it is not a lie. Before you can use an accused's statement as evidence that he admitted responsibility for a crime, you must be satisfied that he deliberately told the lie.

You will know in this case that the accused man has said, when it was put to him at Question 827, 'Did you do anything else that may have caused any of the injuries that Phil suffered?' 'No. Not what I can recall'. 'OK, is it possible that you did something that you cannot recall?' 'It's possible, yes'. You remember, though, that that is in the context where he is expressing great confidence about hitting him with the platypus only once.

To summarise all of that. You may be able to use an alleged lie told by the accused for two purposes. To help you assess his credibility, and as evidence that he implicitly admitted responsibility for that particular crime. It would only be here to rely as to the use of the office chair, if you found it to be a lie, that is, you found it was a deliberate lie, a lie relating to some significant circumstance or event connected with the crime, and he told the lie because he believed he had committed the crime and believed that by telling the truth, that is the full version of what had happened, he would be implicated in it.

In deciding this, you must carefully consider whether there are any other reasonable possibilities for telling the lie.

If you view the inference that the accused man implicitly admitted responsibility of the crime as being of such significance that your reasoning about his guilt may be influenced by it, then you must be satisfied the prosecution has proven each of the matters beyond reasonable doubt.

77 Counsel for the applicant submitted that, although his Honour had initially referred to the lie about use of the chair, he had then told the jury that 'the same can be said for generally downplaying his role' and that 'if you were satisfied that the accused man had deliberately underrated what had happened of which really the chair and the platypus and the whole of the circumstances are part, then you could use the material in that way'.

78 Counsel submitted that his Honour had not identified the relevant lie precisely, and had failed to direct the jury to apply the Edwards reasoning to each lie separately. Because the jury direction was confusing, the jury might have regarded the interview as a whole as evidence of consciousness of guilt and failed to differentiate between issues of credibility on the one hand and lies which gave rise to an inference of guilt on the other.

79 In reply, counsel for the Crown submitted that the jury could not have been in any doubt that the lie from which an inference of guilt could be drawn was the lie about the use of the chair. He relied in particular on his Honour's warning '[r]emember now that it is only that lie [ie, the lie about the chair] that you could use as being an implied admission'. When telling the jury that there were many reasons that a person might lie he again referred to the use of the chair and in his summary at the end of his Edwards direction he did the same thing.

80 Counsel conceded, as he had to, that his Honour had also referred to the applicant 'downplaying' the assault in the interview and to his inconsistencies in his account about the use of the platypus statue. However, counsel submitted that, in doing so, the judge was simply placing the lie about the chair in a broader context. The failure of the applicant's counsel to take exception to this aspect of the Edwards direction indicated that there was no uncertainty about the particular lie upon which the Crown relied.

81 I consider that grounds 2(b) and (c) are made out.

82 The situation in this case can be distinguished from the circumstances in Ellis.[27] In that case, the trial judge and counsel had gone through the process of identifying the lies and other circumstances relied upon as evidence of consciousness of guilt. His Honour reached the view that the lies capable of precise identification were, in effect, parts or features of 'an overall lie' about the circumstances in which the deceased woman had disappeared from the home of the accused. In discussion with counsel, he said that there was a serious risk of the jury reasoning impermissibly to a conclusion of guilt on parts of that 'overall lie'. He also expressed the concern that, if he gave separate Edwards directions in relation to each of the specific lies, as well as the overall lie, this might result in the jury placing too much emphasis on the individual lies. For that reason, his Honour concluded that it would be preferable and fairer to the applicant to put the individually identified lies to the jury as parts or features of the 'overall lie' and give a single Edwards direction in relation to that overall lie. Defence counsel urged the judge to take this approach, which was also accepted by counsel for the Crown.

83 In his closing address, the prosecutor referred to nine separate lies told by the accused. Consistently with the previous discussion with counsel, his Honour referred to the overall lie whilst at the same time identifying the particular features of that lie. This Court held that in the relatively unusual circumstances of the case, no miscarriage of justice had occurred as a result of the approach taken by the judge with the agreement of both counsel and with the active encouragement of defence counsel. The Court said that it might have been better for the trial judge to select two or three of the individual lies and to treat the remaining elements of the overall lie as acts facts and circumstances which demonstrated that the individual lies were lies which bespoke consciousness of guilt. However it was acknowledged that:

to have approached the task in that fashion would not have avoided the risk of the jury misapplying consciousness of guilt reasoning to the remainder of the overall lie and, if consciousness of guilt directions had been given separately in relation to both the precisely defined lies and the remainder of the overall lie, that would have run the risk of over emphasising the significance of the precisely defined lies.[28]

84 Unlike the situation in Ellis, his Honour's reference to the accused's 'down playing his role' was imprecise. The jury were left in a state of confusion about whether the Edwards requirements were confined to the alleged lie about use of the of the office chair or extended to the lie about the platypus statue, as well as the 'downplaying' of the assault. The jury might well have considered that they could rely on the interview as a whole as evidence of consciousness of guilt, without considering whether the statements relating to matters other than denial of use of the office chair were lies arising out of the accused man's consciousness of guilt. While the applicant's counsel did not take exception to the terms of the Edwards direction, I consider that his Honour's failure to comply with the requirements of an Edwards direction by identifying the relevant lies and treating them separately was productive of a miscarriage of justice.

85 I reach that conclusion with some reluctance. I am sceptical about whether the complex components of the Edwards requirements are the most effective means of ensuring that juries do not misuse evidence of alleged lies or other post-offence conduct relied upon by the prosecution as evidence of consciousness of guilt. Such complexity causes considerable difficulty for trial judges and often gives rise to appeals.[29] In my view, it would be desirable for the jury directions about consciousness of guilt to be simplified. The Victorian Law Reform Commission has made recommendations as to how this could be done.[30]

86 Because grounds 2(b) and (c) succeed, it is only necessary to deal briefly with grounds 2(d) and 3.

87 Ground 2(d) alleged that his Honour's direction on consciousness of guilt was unbalanced.

88 In his jury charge, the judge referred to the accused man's statement that he did not recall doing anything else that might have caused any of the injuries suffered by the victim. His Honour then drew the jury's attention to the fact that the applicant had said it was possible that he did something that he could not recall,[31] and commented 'you remember, though, that that is in the context where he is expressing great confidence about hitting him with the platypus only once'.

89 Counsel for the applicant submitted that his Honour should not have described the answers about use of the platypus as expressed with 'great confidence', because this was not consistent with the record of interview. In support of that submission, a recording of a section of the interview was played in court.

90 Counsel also submitted that his Honour should have referred to Dr Burke's evidence relating to the number of times the platypus statue was used. This was said to indicate that the accused's statements to the effect he had used the statue only once may not have been lies at all.

91 In my opinion, his Honour's direction on this matter was not productive of a miscarriage of justice. When the interview is read as a whole, it is clear that the applicant had, on a number of occasions, said that he had only used the platypus once. Further, there is no inconsistency between that statement and Dr Burke's expert evidence that, although he could not say how many applications of force were involved in causing all the injuries, there must have been more than one application of force by use of the statue.

92 The relevant video clips were taken using the victim's mobile phone. The clips, which I have viewed, show Mr Stud, the victim, and the applicant cavorting with each other, while obviously drunk. In one clip, the applicant is dancing with or holding the victim, while a song is being played. In another, one of the participants (not the applicant) exposes his penis. There is another clip of an unidentified man's penis. At the trial, the Crown sought to rely on the video clip to rebut the assertion made by the applicant in his record of interview that the assault was triggered by the victim's remark to him and (possibly) to cast doubt on the applicant's account of the events of the evening when the victim was killed.

93 The issue about the admissibility of the videos was raised at the first trial. The judge made no formal ruling on its admissibility but said that 'he was inclined to say that it's admissible, going to the proposition generally of the relationship'.

94 Immediately after the videos were shown, his Honour said:

Ladies and gentlemen, that will be the last witness for today, but there's just something I want to say to you before we go and it's this. People behave in all sorts of ways. What you've seen on the video will be relevant to your considerations, if at all, insofar as it throws for you, some light on the relationship between the parties involved, nothing more, nothing less. That people behave in a particular way, behave in a way that you mightn't particularly approve of, does not mean that they are more likely than not to commit any criminal offence, let alone commit the offence of murder, so you need to understand that, it's not done to generally degrade the people who are seen in it. It's shown to you only for the purpose of demonstrating, this is the sort of relationship there was between these three people living in this house, at that time, and the way that that may or may not assist you to form what the relationship was between the accused and the deceased at the time of the death, but it's most important that you know that in relation to the use of language and general behaviour and drinking alcohol and so on, there are no general conclusions that you can draw from any of that.

95 No reference was made to the video clips in his Honour's jury charge. In his final address to the jury, counsel for the Crown said that they showed the applicant and victim had a 'friendly relaxed accommodating type of relationship', something which was not disputed by defence counsel.

96 Under cover of ground 3, counsel for the applicant submitted that the video clips should have been excluded. They were not relevant to any fact in issue or illustrative of the relationship between the two men, and were prejudicial because it might have caused the jury to speculate about whether the men had a sexual liaison.

97 The video clips had little probative value in establishing that the accused had intended to kill the victim or inflict very serious injury on him. They simply showed vulgar and drunken skylarking which could not provide the basis for any inference about what happened on the night when Mr Higgins was killed. On the other hand, I consider that they had little, if any, prejudicial effect. Further, the jury were warned by his Honour of the limited use which could be made of them.

98 In my opinion no miscarriage of justice arose because of their admission in evidence.

99 This ground alleged that the jury verdict was unsafe and unsatisfactory.

100 The question a court must ask when considering whether this ground is made out is 'whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'.[32] The plurality in M v The Queen said that, in answering such a question, a court

must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[33]

101 In my opinion this ground fails. The ferocity of the attack on the victim, which involved the dropping of an eight kilogram statue on his head, left it open to the jury to infer that the accused intended to kill the victim, or at least to inflict really serious injury on him.

102 Since grounds 2(b) and (c) are made out I would grant the application for leave to appeal and allow the appeal.

103 Since the application has been allowed, it is unnecessary to consider the application for leave to appeal against sentence.

104 I would also grant the application for leave to appeal against conviction and allow the appeal for the reasons given by Neave JA, most particularly on the ground that the charge given by the trial judge did not comply with the requirements set out in Edwards v The Queen[34] for reliance upon lies as evidence of consciousness of guilt.

[1] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 51 [82]-[85]; see also Ellis v The Queen [2010] VSCA 302, [3]-[4].

[2] Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 343-4; Gipp v The Queen (1998) 194 CLR 106, 168.

[3] Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 251.

[4] R v Anderson [2000] VSCA 16; (2000) 1 VR 1, 12 [30].

[5] Crimes Act 1958, s 3B.

[6] Tests revealed that the statue weighed over eight kilograms.

[7] Ms Zanella agreed in cross-examination that she saw a '750ml or thereabouts bottle of straight Smirnoff Vodka'. Sergeant Dacey later gave evidence that an 'empty 700ml bottle' was found in the house.

[8] R v Johnstone [2008] VSC 583, [14]-[15].

[10] [2007] VSCA 41; (2007) 16 VR 118 ('Cuenco').

[11] Ibid 124. See also R v De Marco (Unreported, Court of Appeal, Winneke P, Tadgell and Charles JJA, 26 June 1997).

[12] [2004] VSCA 64; (2004) 8 VR 101.

[13] Ibid 112 (Winneke P, with whom Buchanan JA and Coldrey AJA agreed).

[14] [2008] VSCA 109; (2008) 185 A Crim R 453.

[15] Ibid 471 (Buchanan, Vincent and Kellam JJA).

[17] [2006] VSCA 263; (2006) 16 VR 26 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA) ('Ciantar').

[18] [2006] VSCA 86; (2006) 12 VR 401.

[19] [2006] VSCA 263; (2006) 16 VR 26, 39.

[20] Ibid 39. Cf Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529, 541-2.

[21] See, eg, Ciantar [2006] VSCA 263; (2006) 16 VR 26, 49-50, 52; see also the remarks on this issue by Nettle JA in R v Smart [2010] VSCA 33, [2]-[6].

[22] R v Smart [2010] VSCA 33, [131] (Ashley JA, Warren CJ and Nettle JA agreeing); R v Jakimov [2007] VSCA 9.

[23] Ellis v The Queen [2010] VSCA 302 ('Ellis'), [3] (Nettle, Neave and Harper JJA).

[24] [2006] VSCA 263; (2006) 16 VR 26, 51.

[25] Ellis [2010] VSCA 302, [3]-[4].

[27] Ellis [2010] VSCA 302.

[29] As to the ways in which juries respond to such directions, see Law Commission (New Zealand), Juries in Criminal Trials Part Two: A Summary of the Research Findings, Preliminary Paper No 37 (1999) Vol 2, [7.34].

[30] Victorian Law Reform Commission, Jury Directions, Final Report No 17 (May 2009), [5.39]-[5.51]; see also Evidence Act 2006 (NZ), s 124.

[31] See [22] and [75] above.

[32] M v The Queen [1994] HCA 63; (1991) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).

[34] [1993] HCA 63; (1993) 178 CLR 193, 210-11.