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“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 [R v Heyes (2006) 12 VR 401; [2006] VSCA 86] implies the contrary, in our view it should not be followed.” (footnote omitted)

8. In T**he Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“The Queen v Baden-Clay”), the High Court said, at [73]-[76]:

“73 In R v White [[1998] 2 SCR 72], in the Supreme Court of Canada, Major J said:

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

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

75 In Lane v The Queen [[2013] NSWCCA 317; 241 A Crim R 321], the Court of Criminal Appeal of the Supreme Court of New South Wales rejected the contention that a count of manslaughter of the accused’s child should have been left to the jury as an alternative to murder. The Court held that the jury were entitled to take the post-offence conduct of the accused as evidencing consciousness of guilt of murder. In particular, the Court held that the lies told by the accused ‘alone were sufficient to provide the evidentiary foundation for an inference that … she acted with the intention of killing’. Their Honours went on to say that the false accounts given by the accused ‘provide no factual foundation for an inference that the manner in which she killed [her child]’ would establish manslaughter by criminal negligence.

76 It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife’s body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.” (footnotes omitted)

9. It is necessary then to consider the particular lies in the context of the evidence in the Crown case and the contested issues. The lies relied on are found in three sources. The first is the accused’s record of interview with police on 21 December 2022. The lies contained in the interview were set out in tabular form by the Crown, a copy of which is annexed to these reasons. In addition the Crown relies on evidence of a lie told by the accused to his uncle, Mr Jason Bristow. The accused, having fled the Central Coast after the stabbing, travelled to Mr Bristow’s house. Whilst there he admitted to having killed the deceased. In the course of giving an account of relevant events the accused told Mr Bristow “he flattened some guy and some guy out with a sword; that he got in fight with him and the next thing you know the knife went in one side of the neck and out the other” (T315.19). The accused told a similar lie when in hospital, shortly after his arrest, stating that a man came at him armed with a sword.

10. With some variation of expression, all of the representations relied on in this context have a common theme. The accused variously asserted that he was not responsible for the presence of the sword, that it was produced by the deceased, that it was produced from behind the deceased’s back, that the deceased “came at him” with the sword, that the sword penetrated the deceased’s neck in the course of a struggle, and that he, the accused, never touched the sword including to dispose of it.

11. The accused’s lies are such that, if accepted, the deceased was stabbed, not through any deliberate act of the accused, but in a struggle which followed him being confronted with the sword and seeking to defend himself. The lies therefore were such as to exculpate the accused of not just murder, but of any responsibility for the killing.

12. The facts of the case are significantly different from those in T**he Queen v Baden-Clay, and, by way of further example, the case of Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22 (“Edwards”). In each of those cases the accused went to significant lengths to conceal both the death of their respective wives and their own responsibility for those deaths. In those cases, the lengths to which the accused went to avoid responsibility for the killing in the context of the nature of the relationship between the accused and the deceased, was such that the conduct was capable of being viewed as more consistent with the accused’s guilt of murder rather than of manslaughter. Similarly in Lane v The Queen [2013] NSWCCA 317; 241 A Crim R 321 there was a significant relationship between the accused and the deceased (that of mother and child) and the lengths taken by the accused to distance herself from the child’s death were elaborate.

13. At perhaps the other end of the spectrum is a case such as Meakin v R [2018] NSWCCA 288 (“Meakin”). There, following an altercation, the appellant left a hotel in his vehicle. The Crown case was that the accused deliberately drove onto a grass verge where the deceased was walking, striking him from behind with an intention to do at least grievous bodily harm. The evidence relied on as proving a consciousness of guilt on the part of the appellant was his failure to stop after the collision, after which he drove through various backstreets to avoid being seen. He then parked his car so as to hide it before leaving for work the next morning without reporting the collision until later in the day. Macfarlan JA (with whom Hoeben CJ at CL and Fagan J agreed) found this post-offence conduct to be intractably neutral as between murder and manslaughter (at [136]). The facts of Meakin, it can be seen, are a long way from cases such as The Queen v Baden-Clay and Edwards. In Meakin there was no prior relationship between the parties other than one of animosity. The accused was in a moving vehicle and failed to stop to render assistance. His conduct was, at this stage, more passive than active. While his subsequent conduct seeking to avoid detection was more directed, it was within a relatively short time after the event. It was very different to the acts of a person responsible for the death of their partner, assuming the role of a bereaved spouse completely innocent of any offence.

14. The facts in the present matter are, arguably, closer to those in Meakin than to The Queen v Baden-Clay in that here there was no close relationship between the parties and the post-offence conduct was not particularly elaborate. There are, however, some important differences. In Meakin the commission of a deliberate act was in issue. Further, that a person driving a car while intoxicated, would, having struck someone, flee the scene is not altogether surprising. There was a degree of circularity in the Crown using the post-offence conduct to prove that the applicant's striking of the deceased was a deliberate act (see per Fagan J at [260]). It should also be noted that the post-offence conduct in Meakin occurred immediately after the act resulting in death. In such circumstances panic is an understandable reaction to involvement in an act causing death. Indeed, consistent with this, the Crown does not seek to rely on the accused’s flight in the present case as evidence of consciousness of guilt. Here, the lie was told to Mr Bristow on 19 December 2022, two days after the killing of Mr Strudwick. It was told after the accused made an admission on 17 December to Mr Speechley, to having killed the deceased without raising any issue of lack of an intention to cause grievous bodily harm, or suggesting he believed his act was necessary in his own defence. Rather, Mr Speechley’s evidence, which was not challenged, was that the accused told him “See that chopper, that’s for me, I think I killed Nathan, he thought he was a big man” (T286.48).

15. The probative value of the lies sought be to relied on as evidence of guilt must, of course, be determined in the context of the issues in the case. In issue is, firstly, whether the accused intended to kill or inflict grievous bodily harm and secondly, whether the accused believed his act of thrusting the sword resulting in the fatal injury, was necessary in his own defence. In the context of these issues, are the accused's lies capable of supporting an inference that he told lies as he was conscious the truth would show him to be guilty of murder? The truth (that is the respect in which he can be proved to have lied) in this context is that he obtained the sword from Mr Wilson and deliberately thrust it so as to cause the death of Mr Strudwick.

16. A possible explanation for the accused to have deliberately lied is that he wished to absolve himself of all responsibility for Mr Strudwick's death. The competing explanation, urged by the Crown, is that he knew himself to be guilty of murder and knew that admitting to bringing the sword to the conflict and using it so as to inflict the fatal wound would show him to be guilty of that offence.

17. Would, if one assumes the accused's present contentions as to the bases on which he accepts he is guilty of manslaughter, he have been more likely to have told the truth? The accused could have told his uncle and the police, in accordance with his case at trial, that he obtained the sword because he believed himself to be in serious danger. Further, he could have explained that he thrust the sword not intending to occasion serious injury and only thrust it because he believed it necessary to do so in order to defend himself (or one of those two things). Doing so would have involved an admission of responsibility for killing Mr Strudwick. Nonetheless, while the accused cannot be expected to know the fine distinctions between murder and manslaughter (see Steer v R [2008] NSWCCA 295; 191 A Crim R 435 (“Steer”) at [69]), he is likely to have appreciated that this would have involved a significantly lesser level of culpability for the killing.

18. Evidence is not "intractably neutral" simply because there are competing possibilities. The question is whether the jury would be entitled to reason, based on their collective understanding of human behaviour, that had the accused been responsible for the killing, but in the circumstances he now contends, he would be more likely to have admitted that involvement than to have deliberately lied. In my view it would be at least open for the jury to do so. The bases on which the accused contends he is guilty of manslaughter are, as I have already observed, likely to have been understood by him as involving a significantly diminished level of culpability for the killing. Given this, it is at least open to reason that had the accused’s present contentions been true, he would have been more likely to have told the truth than to have told the lies that he did. In these circumstances it is for the jury to determine the merits of the Crown's argument. This is not a case where, in my view, it can necessarily be said that “… the only guilt of which the appellant could reasonably be said to have been conscious was of guilt of killing – even unlawfully killing – the victim”: R v Sievers [2004] NSWCCA 463; 151 A Crim R 426 (“Sievers”) at [84] (Simpson J) (I note that, while Simpson J was in dissent in Sievers her reasoning was approved by a majority of the Court of Criminal Appeal in Steer). Here, the considerable gulf between the accused’s culpability depending on what is accepted as to the circumstances in which he obtained the sword and used it is capable of informing his motivation to tell the lies in question.

19. Based on the above the Crown is entitled to put an argument to the jury that the identified lies are more consistent with his guilt of murder than with his contentions at trial. The Crown is entitled on this basis to submit the identified lies were told by the accused as he was conscious of his guilt of murder. I rule accordingly.

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ANNEXURE A - R v Bobak (No 7) - Table (179 KB, pdf)