R v Boyle [2009] VSCA 289

1 After a trial which lasted some eight days, the applicant was convicted in the Supreme Court, at Melbourne, of the murder in October 1983, of his wife, Edwina Boyle. He was sentenced to a term of 21 years' imprisonment. A non-parole period of 17 years was fixed. He now seeks leave to appeal against both conviction and sentence.

2 The applicant and his wife emigrated to Australia from Wales, arriving in this country on 3 June 1972. She was, at that time, pregnant with their first daughter, Careesa, who was born in August of that year. Their second daughter, Sharon, was born in 1975. After their arrival, the applicant worked for a carpet manufacturer, and his wife worked on a poultry farm.

3 In about 1979, Careesa and Sharon took up competitive ice skating at the Frankston Ice Skating Rink. The evidence disclosed that, until about 1982, the applicant and his wife had an apparently harmonious relationship. However, from about October of that year, it deteriorated. At around that time, the applicant became a member of the ice-skating committee. It was there that he met Virginia Gissara and they began an intimate relationship. The evidence showed that the applicant's wife knew of the affair and that it was a source of much tension between her and the applicant.

4 On the night of 6 October 1983, as the applicant's wife lay in bed, she was shot in the head with a .22 calibre gun. It was the prosecution case that the applicant fired the fatal shot. The applicant's case was that he came home late on the night in question. He claimed that he got into bed and nudged the deceased. She did not respond. He then got out of bed, switched on the light, and saw that she had been shot in the head. He claimed that he also saw that one of his neck ties had been tightened around her neck. The deceased was aged 30 at the time of her death, and the applicant was some four years older.

5 It was common ground that, following the death of the deceased, the applicant put her body into a Hessian bag which he placed into the back of his van. He then forged a note from the deceased stating that she had left the family for a truck driver named 'Ray'. On 7 October 1983, the day after the deceased was shot, the applicant showed the note to Ms Gissara, and also to his brother-in-law, Tom Turner. He later destroyed the note.

6 Within several days, the applicant placed the deceased's body, still in the Hessian bag, into a green metal 44 gallon drum which he had purchased for that purpose. He sealed the drum and kept it at his premises. He took it with him as he re-located from time to time in the years that followed. Whenever he was questioned about its contents, he would say that it contained glue that was used in carpet laying, and that it should not be opened, or disposed of. After some time had passed, he would tell people that the contents of the drum had become toxic, and for that reason, could not be destroyed.

7 It was also common ground that on the day after the deceased disappeared, Ms Gissara together with her four children, moved in with the applicant and his two daughters. Both the applicant and Ms Gissara claimed that this event had been unplanned and took place only because she and her husband had had a bitter argument.

8 For more than 20 years thereafter, the applicant persisted with the lie that the deceased had run off with 'Ray'.

9 Everything changed on 17 September 2006. At this time Careesa and her husband Michael Hegarty were sharing a house with the applicant. While in the process of cleaning up the backyard, Hegarty cut the drum in half in order to load it onto a trailer to take it, and other rubbish from the backyard, to the tip. He said that, located in the drum, he saw an assortment of women's clothing, as well as a Hessian bag. According to Hegarty, at that moment, the applicant told him that lunch was ready. During lunch he asked Hegarty if he could borrow one of his wheelie bins so that he could store his tools in it.

10 After lunch, when Hegarty returned to the backyard, he noticed that some of the contents of the drum had been removed. He then loaded the two halves of the drum onto the trailer. Hegarty and the applicant then took the trailer load to the tip.

11 About a month later, on 13 October 2006, Hegarty was once again working in the backyard. He opened the wheelie bin in order to separate his tools from those which belonged to the applicant. In the wheelie bin he noticed a Hessian bag which he recognised as being similar to that which he had previously seen in the drum. He opened that bag and discovered various human remains including, in particular, a skull. He then called the police.

12 The applicant was arrested on that same day. He was interviewed and told the police how he had discovered the body of his wife, shot in the head, lying in their bed. He said that he had panicked, concealed the remains in the drum, and made up the story about 'Ray'. He was then charged with murder.

13 The applicant gave evidence at his trial. As previously indicated, he denied any involvement in the death of his wife. He repeated his claim to the police that he had discovered her body after he returned home on the night in question. He insisted that he had panicked, believing that he would be wrongly suspected of involvement in her death. He admitted that he had concealed the body in the drum in the way set out earlier in these reasons for judgment.

14 There was some scientific evidence led at the trial. Dr Malcolm Dodd, a pathologist, carried out an autopsy on the deceased's remains. He found that the cause of death was a single gunshot wound to the right side of the deceased's skull. He was unable to express any opinion as to whether she had also been strangled, as the applicant claimed.

15 The applicant relies upon the following grounds in support of his application for leave to appeal against conviction:

1. The learned trial judge erred by, in substance, directing the jury that matters relied upon by the defence as forming the basis of a reasonable doubt in the minds of the jury as to guilt could not rise above speculation and, therefore, should be disregarded.
2. The learned trial judge erred in directing the jury that there was no evidentiary basis for, and that they should give no consideration to, the possibility that the deceased was having an affair at the time of her death. (Discussion at T 412 & ff, Charge at T 428 & ff, 514-515 & 540)
3. The learned trial judge erred in his directions to the jury as to consciousness of guilt.

PARTICULARS

Conduct relied upon by the Crown as evincing consciousness of guilt was not sufficiently particularised and/or did not have attaching to it a consciousnesses of guilt direction. Much of the evidence relied on as evincing consciousness of guilt on the applicant's part was "intractably neutral", there being no issue but that the applicant was disposed to lie and act in a manner that was calculated to deflect suspicion of murder.

1. A miscarriage of justice arose in the present case by virtue of an aggregate of errors.

16 Grounds 1 and 2 were argued together. For that reason it is convenient to deal with them jointly.

Grounds 1 & 2 - Closing off the defence hypothesis

17 The case against the applicant was entirely circumstantial. In an attempt to meet that case, and to suggest that there might be a reasonable hypothesis consistent with innocence, defence counsel, in her closing address, hinted at the possibility that, in addition to the applicant's affair, the deceased might also have been having an affair. She then implied that there might be a link of some kind between any such affair, and the death of the deceased. It was never quite spelt out what the nature of that link might be.

... you have to wonder how much further those people could really say about what Edwina might or might not have been doing or thinking at the time of September/October 1983. How much realistically could they have known about the ins and outs of her relationship with Fred Boyle, or her relationship or contact or association with anyone else for that matter.

We know that she lost a lot of weight, that she had altered her personal appearance somewhat and whether that was purely connected with her marriage or something else we will never know. But she was described as a very private person and the evidence shows that she did and said some fairly curious things not long before September/October 1983. At the meeting with [the] children at the school, that Careesa described, where she said she was going away for a while, the mysterious comment to old Mrs Boyle and Mavis and George Ball, about giving the family something to think about, all of those things. The weight loss injections, the, all of these, the connection with the GP, Dr Michael Yardney, who we hear later on was in all sorts of difficulties and troubles, all of these things are just among - and then of course there had been the recent insertion of an IUD so clearly Mrs Boyle was sexually active at the time, and all of these things are part of the material put before you, but it's submitted to you that there is a number of incongruities about a lot of those matters.

The fact of the matter is that all of the witnesses or most of the witnesses said, well, there didn't seem to be anything wrong, everything seemed to be going well, with - she said that they were going to build on some land at Hastings, spoke well of her husband, and so on. None of them said that, "Mrs Boyle confided in me or disclosed to me that she believed that Fred was having an affair with Virginia" and that this was what she or he or they were going to do about it. That's the extent to which Edwina Boyle was a very private person.

Not one person had received that confidence prior to her death. And yet it is conceded that she did know. And that Sam Gissara also knew what was going on.

And in fact there was talk around the skating rink apparently, other people knew, the cat was out of the bag but Edwina wasn't talking about it, and so, as to how much people really knew about Edwina Boyle, she was a person who clearly kept her own counsel and as to what were her thoughts and plans and actions at that time, and who she was associating with, what she was doing, these things may never be known.[1]

19 Plainly, motive was a major component of the prosecution case, it being suggested that the applicant had murdered his wife so that he and Ms Gissara could live together. In answer to that suggestion, defence counsel said to the jury:

And when you think about it, how could anyone anticipate or plan to kill their wife so as to be with another woman, to kill their wife and throw themselves into that kind of absolute chaos? A complete leap into chaos. It would be impossibly doomed, you would think. Six children between them, he living in a very small flat. It simply makes no sense at all.

There would have been many easier options you might think if he had decided that his marriage was at an end. So, it's my submission to you that this is not a killing which has the features of a domestic homicide. And Fred Boyle has given evidence to you that he found his wife strangled and shot in the marital bed, strangled with his necktie, Mr Boyle's own necktie.

And that makes it a very mysterious sort of a homicide. An enigma. And whether it's some sort of revenge killing, a home intrusion, a spurned lover, a silencing, who knows. It's a mystery but at this stage there is no hope of solving it.

...

Now, it's my submission to you that there is no evidence that this homicide was some kind of plan, planned enterprise developed by Fred Boyle so he could be with Virginia Gissara. The idea that he could have planned to shoot and strangle his wife in his own home, in his own bedroom, with his children present in the home, on his own bed on a week night when Edwina Boyle had not long left a very public place and was expected [at] public appointments the next day, it just doesn't add up, in my submission to you.

So if he had been planning to kill his wife or have her killed or any of those things, there must be a multitude of less risky ways he could have gone about that.

He had been on trips interstate with her, they had slept in the van, she was frequently outside the home at all sorts of places, for work, for horse riding, for the ice skating, away from the home, using her car to go to these various appointments and so on. There must have been many different and less suspicious places for her to be killed if that was what he intended and what he did.

So, it doesn't make sense, in my submission to you. It's not as if he's gone to lengths to prearrange some sort of an alibi or prearrange some kind of a story in advance of 6 October. It just, there is no evidence of that, nothing at all. This has come like a bolt out of the blue to Fred Boyle. And his cover up and lies and concealment have been conducted out of a fear that his children would not only be orphaned in respect of their mother but they would also be orphaned in respect of their father, if he had told the truth about what he found on that night.

...

On the contrary, when you look at it there were all sorts of pending workaday, weekday pressures that were bound to impinge if that was the grand plan, if Frederick Boyle had decided that he was going to kill his wife on 6 October 1983. He doesn't prearrange a sleep over for his children. He doesn't prearrange a killing at a time when perhaps it is a weekend or there's a break from work commitments. He doesn't do anything to prearrange to avoid his brother-in-law visiting his premises to pick him up on the morning of 7 October. He doesn't prearrange any controversy about somebody called Ray before 6 and 7 October. He does nothing in the nature of laying a false trail in advance of 6 October. There is nothing that is consistent, in my submission to you, with any plan to kill his wife to be with Virginia.

Virginia herself gave evidence that she had no intention of leaving her husband and setting up with Fred Boyle as at September/October 1983.

So, if you think about it, if Fred Boyle was planning to kill his wife in the hope of being with Virginia, then it is a pretty odd thing to do. You'd want to be absolutely dead certain that that could and would occur. In fact, at the time of Edwina Boyle's life being taken Mrs Gissara was living in a suburban situation with her husband and four children. She hadn't left Sam. She hadn't announced a separation. He hadn't told her to go. None of those things had happened, according to the evidence before you, as at 6 October.

The evidence showed that Sam had only learned of the affair a couple of weeks earlier and he had confronted Fred at the rink. Virginia gave evidence that it was only after Fred turned up with his children on 7 October and after the sequelae that followed from that, that she was effectively forced out of her home. That in itself is another curious feature of this case. The timing of Sam Gissara forcing her out of the home, coinciding with the unexpected homicide of Edwina Boyle. You might wonder about the timing of that and why that occurred. Why was it that Sam Gissara chose that moment to force Virginia out of the home?

So the whole Gissara aspect of the Crown case is somewhat of a tangled thread. Obviously Virginia Gissara has claimed no knowledge of any suspicious circumstances at all surrounding the death of Edwina Boyle, and her evidence is that she was, she had nowhere to go. She was kicked out effectively and she had nowhere to go so she arrived on Fred's doorstep and said, "I've left Sam", and she had nowhere else to go.[2]

20 Plainly, defence counsel was seeking, by these remarks, to cast doubt upon the motive suggested by the prosecution for this murder. In the course of doing so, she described the deceased's actions and words, at or around the time of her disappearance, as giving rise to a 'number of incongruities'. Towards the very end of her address, she said to the jury:

Frederick Boyle did not kill Edwina Boyle. There's something much more sinister behind the bullet in her temple and the tie around her neck, I suggest to you, and it's a very important aspect to bear in mind.[3]

21 The following morning, the trial judge, obviously concerned by the tenor of counsel's address, raised with her whether she had sought to have the jury speculate, in an impermissible manner, about various matters as to which there was simply no evidence. The transcript of the discussion that took place, in the absence of the jury, reads as follows:

HIS HONOUR: In the course of your address, by implication at least you suggested to the jury that Edwina Boyle may have had some type of mysterious other life.

MS DIXON: Yes, Your Honour.

HIS HONOUR: That in my view amounts to speculation. The facts that you relied upon could never lead a jury to that. They were these: the presence of an IUD, the loss of weight, and two mysterious conversations about which the jury know little about the context, one at the schoolyard and one round at Mavis Ball's shortly before she was killed. Now, it would, I think, be sheer speculation for the jury to put those pieces of evidence together and say, "Here is a lady who was leading a second life", which is really what you invited them to do.

MS DIXON: But, Your Honour, from the defence point of view, material that is offered in an address by way of putting to the jury that there are some mysterious features of a case that should concern them - - -

HIS HONOUR: I don't have a problem with that, it's the next step. You didn't put it directly. It was the next step - and this is a lady who the positive evidence discloses is she is working probably full-time, at least part-time at the chook farm, and when she wasn't there she was at the ice skating rink, 24/7 on the evidence.

MS DIXON: Well, on one view Mr Boyle was very heavily engaged in it too but it didn't stop him seeing someone.

HIS HONOUR: That would be different, wouldn't it, if it was suggested that she was having an affair with someone at the ice skating rink, I can understand that, but that's not been a proposition.

MS DIXON: All that was raised was that there has been evidence about what she would or wouldn't have done and what was going on in her life but that really no-one knew. I think one of the witnesses, Mrs Dungan, may have said she was a very private person, and what was raised in my closing was that she - that it's likely she was a private person and no-one really knows what was going on in her life and who she may have been in contact with. Now, I raised that partly because when one reads, when you read the Missing Persons file the police were very concerned at one point that she may have had a boyfriend, based on material such as those - - -

HIS HONOUR: With respect, so what? It's the evidence before this jury.

MS DIXON: Because there was an issue at one point might she have been, for example, might Raymond Edmonds have had contact with her in that sort of fashion and might he have chosen her as a victim.

HIS HONOUR: There is no evidence about that.

MS DIXON: There is no evidence but the defence doesn't have to ask the jury to draw a positive inference of something.

HIS HONOUR: No, it doesn't, I accept that without any reservation, but the problem about it is that the defence cannot ask them to speculate about it, they'd be speculating as opposed to drawing an inference in relation to matters that might exculpate your client.

MS DIXON: But the defence can make the point that there is a lot we don't know about what was going on in her life, and there has been a long passage of time so it's very hard, I mean the medical records don't even exist any more from the GP. There is a whole lot of things that are missing, I said obscured by the mists of time, and that that should give them a sense of disquiet. That was the point I was making, that it's all very well to say, "Oh, she wouldn't have done this" or, "She wouldn't have done that" or she was too busy.

HIS HONOUR: I will charge - I will direct my attention to them that they may have a sense of disquiet but if they wish to draw any inferences they need to be careful. Anything else?

MR SILBERT: No, Your Honour.

MS DIXON: No, Your Honour.

22 Ultimately, in his charge to the jury, his Honour did what he had earlier foreshadowed. He said the following:

There is another area of speculation that you might be tempted to engage in. There has been evidence about Edwina losing weight, taking a trip to the doctor and having an IUD fitted and a couple of mysterious conversations to the children and to her mother-in-law. You could not use that evidence to conclude that Edwina was engaged in some other relationship with some other person. That again would simply be speculation. The reason for that is there could be any number of reasons for Edwina having the IUD fitted, losing weight, and the like. So, you could not use that.

What you can take on board is the suggestion made by Ms Dixon that no-one really knows, she put this to you, that no-one really knows what goes on in someone else's life, and that is probably correct, but in terms of the evidence in this case, the evidence in relation to Edwina Boyle is that she was working at the chook farm and when she was not working at the chook farm she was at the ice skating rink and she was devoted to her children.[4]

23 His Honour returned to the subject of speculation when he came to summarise both sides' arguments. On this occasion, however, he prefaced his remarks by making it clear to the jury that what he was saying amounted only to 'comment'. He said:

This is my comment: of course there might be incongruities, but you deal with the evidence, the hard facts before you. It is not your task to speculate. If there's evidence before you from which you can draw inferences, please do so.

The contrary side to that proposition, that there are a lot of incongruities is this: I repeat, this is my comment for what it is worth: there is an abundance of evidence that this lady worked at the chicken farm regularly and after the chicken farm she went to the ice skating rink regularly and that her life was her children. At the end of the day it is all a matter for you. Of course, there are things we will never know, but you deal with the evidence as it is presented.

She was however - she did make the point, however, to you that the evidence does disclose that Edwina was a person who did keep her own counsel.

As she said to you, what her own counsel might have been will never be known but, and this is a matter for you, but my comment to you is that there is simply no evidence to suggest that Edwina Boyle was engaged in any form of extramarital activity or any nefarious activity. It would simply be speculation and that's something that you can't enter into. I have already dealt with it on the other side of the coin with some of the prosecution case, with the defence case it would simply be speculation to think that she was engaged in something else. The only other person who has been nominated was Ian Padgham. He's sworn that there was no such activity, and you have the evidence about her own activities, which seemed to be the farm, skating - sorry, chicken farm, skating and her children. At the end of the day it is a matter for you entirely. What is correct in terms of what was put to you by Ms Dixon is that she was a woman who, it seems, kept her own counsel.[5]

24 At some point after the jury had retired to consider their verdict, they returned with a question. It was in the following terms:

Can his Honour remind the jury of the matters he believes we should set aside?

25 The trial judge then discussed with counsel, in the absence of the jury, what he should say in answer to that question. It seems clear from the transcript of the discussion that his Honour initially understood the question as referring to evidence that, at the time of the shooting, the applicant had kept a .22 calibre weapon in his bedroom cupboard. His Honour had previously told the jury that they could not speculate that the applicant's gun was the weapon that had been used to kill the deceased.

26 His Honour indicated that he proposed, in response to the question, to repeat the direction that he had previously given regarding this matter. He said that he would remind the jury of the difference between drawing inferences, an entirely legitimate process, and engaging in mere speculation, which he would tell them was not permissible.

27 That intimation provoked concern on the part of defence counsel that his Honour proposed to repeat what he had earlier said about there being no basis for any finding that the deceased had been having an extra-marital affair. Counsel said:

Your Honour, my concern again is that when it's wedded with the other matters that are going to the elements of the Crown case, the rifle issue and the skull issue that could be relevant to proof of the Crown case, the third matter put together with those is problematic because it's not about - it might be an example of unsafe inference drawing perhaps. I mean, it's an example of - Your Honour gave examples of the drawing of inferences and some inferences can be safely drawn and others can't, but it's not necessary for them to draw any inferences about whether or not Mrs Boyle may or may not have had a personal, a secret personal life.

HIS HONOUR: But there is, because you have gone to the jury saying, well, this lady could have been killed by someone with a motive, any number of motives, and you have said to the jury it could have been someone, I think you said serial rapist, someone that she knew, I can't remember the words now, but inviting the jury at least to consider the prospect that there was some other motive for her death.

MS DIXON: Well that's a legitimate forensic - - -

HIS HONOUR: I understand that. I understand that, but then to build on it though by saying to the jury, well, here are these little bits of evidence that can be used to conclude that she may have been having an affair, was what I was directing their attention to. I had put to the jury the point which seemed to be your primary point which was that Edwina kept her own counsel and was a private person who kept her own counsel and therefore I think the point you were making was it may not have been obvious what was going in her life.

MS DIXON: But, Your Honour, my complaint is that they don't need to embark on the same kind of inferential reasoning when - - -

HIS HONOUR: Because of the other side of the coin, because of your position as the defence.

MS DIXON: That's exactly right. Because of the onus being on the Crown and, I mean, the defence only has to raise a doubt about the Crown case, a reasonable doubt, and if the absence of proper information or absence of information about what may have been going on in Edwina's life and what associations or contacts she may have had, and it goes beyond just boyfriends, Your Honour, I mean, as Your Honour recalls, the defence position is that simply there may have been someone else that may have done this act, and - - -

HIS HONOUR: That proposition I accept, but it's the next step.

MS DIXON: But in order to raise that position, it's quite legitimate for the defence to point out various aspects of her life which, about which questions are raised and about which the evidence isn't - it's a little unsatisfactory, and the jury don't need to embark on a process of inferential reasoning, they just need to consider that there is a doubt raised by those matters. It's not a matter about which they have to, they are obliged to form - - -

HIS HONOUR: But how on the evidence could they possibly form the view, even allowing for that, and I understand that, possibly form the view she was engaged in an extramarital affair?

MS DIXON: They don't need to draw that inference, Your Honour, they just may have a view that it's possible that she was in contact or associating with a person at that time who for some reason posed a danger to her or for some reason enacted some act of revenge or of silencing or any of those things. If they have a doubt about that, if they think it's possible that it was, she was a victim of an home intrusion or that there was somebody who was having some contact with her who bore her malice, if there [are] aspects of her life and behaviour that raise questions in their mind about that, that's, that may be the reasonable doubt the defence raises, it doesn't have to be a matter that the defence has any onus of proving and therefore in terms of the drawing of inferences there isn't a need for there to be inferences drawn to any particular standard of proof. I mean this is - in my submission, it happens all the time. For example, take a rape case. Essentially in most of those cases there is an issue about the credit of the complainant and it may just be a number of things about the complainant's evidence that the defence goes to the jury with, saying, "Well, that sounds a bit odd, doesn't it? And that issue hasn't really been answered properly", and the jury don't need to form an inference of any particular sort, but just if they are not feeling satisfied, if they have a reasonable doubt, then they are entitled to acquit, so that's my concern about that aspect.

HIS HONOUR: Yes, I follow.

MS DIXON: And it's very important, in my submission, that Your Honour distinguishes it from matters that go to the Crown case.[6]

28 Having heard from both sides, his Honour decided that he would remind the jury, when answering their question, that the accused did not have to prove anything, and that the onus rested throughout upon the Crown.

29 The jury were then brought back into court. His Honour, in answer to their question, dealt generally with the matter of 'speculation'. He spoke firstly of the appearance of the skull at the time of the post-mortem, warning the jury that it would be sheer conjecture to conclude that its appearance, some 25 years after the event, bore any resemblance to what it would have looked like shortly after the murder. He dealt next with the matter of the gun in the bedroom cupboard, warning the jury not to engage in speculation, adverse to the applicant, about that matter.

30 His Honour then turned to what he described as the third area of 'speculation' which he had previously warned the jury against, namely, the deceased's supposed affair. He said:

Now, the third point that I directed you about was this, "It would be speculation for you on the evidence to conclude that Edwina had been having an extra marital relationship because there are any number of reasons for Edwina having the IUD fitted, losing weight and the like", so you could not, and the only other person who was suggested was Mr Padgham. You, of course, will form a view about his evidence which you would take into account, here you had his sworn evidence about that. Those factors, putting aside Mr Padgham's evidence, those factors could not enable you to conclude that as [a] matter of fact there was an affair being conducted by Edwina.

Now, again, having said that, however you should bear in mind, as Ms Dixon said to you, that sadly in this community there are persons who are the victims of homicides for any number of reasons and you will need to keep that in mind.

If the accused's evidence and, or alternatively, the circumstances in which she met her death cause you to have a reasonable doubt, then that would entitle you of course to acquit the accused and find him not guilty.

Now, I remind you again that the defence does not have to prove anything, it's for the Crown to prove its case, but you look at all the evidence in terms of assessing the Crown case. As I said, it's not a case of just looking at compartments of evidence, there are a couple of aspects of the evidence that I have directed you you should put to one side, but then again there is still a large body of evidence, including of course the evidence of Mr Boyle which you will receive, his evidence on oath that you will receive at about 2.30.[7]

31 No further exception was taken to his Honour's direction to the jury in response to the question that had been asked.

32 Before this Court, it was submitted on behalf of the applicant that his Honour's direction to the jury, that they should not speculate about the possibility that the deceased had been having an affair, had closed off a line of argument that the defence had been fully entitled to put forward. It was submitted that there was a proper basis, on the evidence, for the suggestion that the deceased might have been having such an affair. It was noted that counsel at the trial had justified what she had said in her address by referring specifically to the following matters:

• the deceased had lost a lot of weight, had altered her appearance somewhat, and was taking weight-loss injections;

• she had earlier told her daughters, at school, that she was going away for awhile, and that they were to remember that she always loved them;

• she had told the applicant's mother, his sister and his sister's husband that she was going to 'give the family something to think about';

• she consulted with a medical practitioner who was later charged with various sexual offences; and

33 It was submitted that defence counsel at trial might also have referred to other evidence that suggested that the deceased had been having an affair. This included the applicant's own suspicion, at the time, that her weight loss had been brought about by her 'seeing someone else', and his belief that she was having an affair with Ian Padgham, a close acquaintance of the Boyles. It should be noted however, that Padgham gave evidence and emphatically denied any such suggestion.

34 Finally, it was submitted that there was evidence, at the trial, that 'Mr Stinky', a notorious murderer and serial rapist, had lived not far from the applicant in 1983. It appeared that his modus operandi had been to break into women's homes when their husbands were at work, and sometimes when there were children in the house.

35 Of course, this last point could have no bearing whatsoever in as far as the suggestion of an extra-marital relationship was concerned.

36 It is against this background that the trial judge's direction to the jury, that it would be nothing more than speculation for them to find that the deceased had been having an affair, is said to have been erroneous. It is claimed that by so directing the jury, his Honour deprived the applicant of a legitimate avenue of defence, and one which could have given rise to an alternative hypothesis as to how the deceased had come to be killed.

37 In putting that submission to this Court, counsel for the applicant frankly acknowledged that the evidence upon which this 'hypothesis' was said to rest 'did not come within a bull's roar of establishing, in a positive sense', that there had been such an affair and, if there had, that it had any bearing whatever upon the deceased's death. However, he submitted that this was not the point. No such onus lay upon the defence. The applicant had only ever been required to raise a reasonable hypothesis consistent with innocence. The matters to which counsel had drawn attention in her closing address, and which are set out at paragraph 32 above, might, conceivably, have done so.

38 In response, Senior Counsel for the respondent submitted that there was no basis whatever for any submission to the jury that the deceased had been having an affair, still less that any link might have existed between any such affair and her death. What defence counsel had done was to invite the jury to engage in speculation, and the trial judge had been entitled to tell them that this was not permissible.

39 In developing that submission, it was contended that the fact that the deceased had lost weight, and worked on her appearance, could not reasonably have led to the conclusion that she was having an affair. The same could be said of her statements to her daughter, and to her in-laws. Her having been fitted with an IUD meant nothing more than that she was either then sexually active, or contemplating becoming so. It did not follow that any sexual contact that she was having, or contemplating, was of an extra-marital nature. It was submitted that, to conclude on the basis of these facts that the deceased had been having an affair would have been nothing more than surmise and conjecture.

40 However, even if that were not so, it was submitted that it would be conjecture upon conjecture to reason from any inference that the deceased was having an affair, that this was connected in some way to her murder. Defence counsel had hinted at such a link, but only in the vaguest of terms, and never directly. In a sense, her address reflected Pope's well-known aphorism, 'willing to wound, and yet afraid to strike'.[8]

41 In dealing with these competing contentions, it is first useful to note that the authorities make it clear that it is wrong for a jury to be invited to engage in groundless speculation.

42 In R v Clarke,[9] the issue was whether, in a circumstantial case, the failure of the trial judge to give the traditional circumstantial evidence direction meant that the trial had miscarried. At trial the case put forward on behalf of the accused was that he had been mistakenly identified as the person who transferred a number of large cardboard boxes from his wife's motor car into certain premises where stolen goods were said to have been temporarily stored. On appeal, it was submitted, for the first time, that, even assuming that the accused had been involved in moving those boxes, there was an innocent explanation for his having done so. It was said that he may have been wrongly implicated in the charges brought against him because he had innocently and unknowingly assisted the real offenders, his wife and his brother, both of whom, incidentally, had criminal records for dishonesty.

43 Hunt CJ at CL said, of this new, and fundamentally different defence:

The fact that no such "case" was put forward by the appellant at the trial does not, however, mean that it was not the duty of the judge to give directions to the jury appropriate to such a "case"; and notwithstanding that in doing so he may injure the case which the appellant was seeking to make at the trial upon another issue. But the absence of any such direction does not automatically lead to a new trial. As so often happens when an accused seeks to fight one set of issues at the trial which tactically excludes reliance upon another issue also arising (one which is potentially embarrassing to him), no objection is taken to the absence of this direction, and no request is made to the judge that such a direction be given. That is why there is a need for leave before the absence of a direction can be relied upon at the appeal, an issue to which I will turn shortly.

Was there then a "case" which should have been put to the jury as to an innocent explanation of the circumstances which were established in the Crown case? I do not intend to suggest that the appellant carried any onus of proof, but it was nevertheless necessary for him to be able to point to the basis upon which the jury could act. The bare possibility of innocence is insufficient, and the jury cannot act upon some fanciful supposition or possibility not reasonably to be inferred from the facts proved.[10]

44 Clarke establishes that, although an accused need do no more than point to evidence, or other material, from which it can be said that there is a reasonable possibility that someone other than himself committed the offence in question, it is not appropriate to invite a jury to engage in 'fanciful supposition'. The Crown must exclude any reasonable (or rational) hypothesis consistent with innocence before the guilt of the accused can be established. Importantly, however, it is not required to exclude any hypothesis that is 'not reasonably to be inferred from the facts proved'.

45 In Peacock v The King,[11] O'Connor J had this to say:

The duty of a jury in regard to circumstantial evidence is often in practice stated briefly, and, I think, accurately, in these words:--"The circumstances must be such that the jury may reasonably draw from them an inference of the prisoner's guilt, and can reasonably draw no other inference." It is, I think, necessary for the purposes of this case to add that an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence. There are some observations in Starkie on Evidence (3rd ed.) on this aspect that are worthy of attention. At page 577 the learned author says:--

"What circumstances will amount to proof can never be [a] matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury. On the one hand, absolute, metaphysical and demonstrative certainty, is not essential to proof by circumstances. It is sufficient if they produce moral certainty to the exclusion of every reasonable doubt; even direct and positive testimony does not afford grounds of belief of a higher and superior nature. To acquit upon light, trivial and fanciful suppositions and remote conjectures, is a virtual violation of the juror's oath, and an offence of great magnitude against the interests of society, directly tending to the disregard of the obligation of a judicial oath, the hindrance and disparagement of justice, and the encouragement of malefactors. On the other hand, a juror ought not to condemn unless the evidence excludes from his mind all reasonable doubt as to the guilt of the accused, and, as has been well observed, unless he be so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest; and in no case, as it seems, ought the force of circumstantial evidence, sufficient to warrant conviction, to be inferior to that which is derived from the testimony of a single witness, the lowest degree of direct evidence."

In drawing an inference of guilt_, or in declining to draw it, the jury must act upon the facts established in evidence,_ and if the only inference that can reasonably be drawn from those facts is that of the prisoner's guilt, it is their duty to draw it_._ They cannot evade the discharge of that duty because of the existence of some fanciful supposition or possibility not reasonably to be inferred from the facts proved. [12]

46 In R v Youssef,[13] the appellant was convicted of manslaughter after the motor car he was driving struck and killed a pedestrian. His defence was that, immediately prior to the collision, he had suffered an epileptic seizure, rendering his conduct involuntary. Having regard to the medical evidence adduced in support of that defence, the trial judge removed the issue of voluntariness from the jury, thereby leaving them to consider only 'insane', rather than 'sane', automatism.

47 The appeal was allowed. Hunt J, with whom Wood and Finlay JJ agreed, noted the Crown's obligation to exclude any reasonable possibility that the act of the accused was accidental. His Honour said:

The Crown must therefore remove any reasonable possibility that the act of the accused was accidental (Woolmington v DPP [1935] UKHL 1; [1935] AC 462, 482), or that it was involuntary as a result of a state of automatism (Bratty v A-G (Northern Ireland) [1963] AC 386, 407 and 414-5; Ryan v The Queen [1967] HCA 2; (1966) 121 CLR 205, 215-6), or as a result of duress: R v Gill (1963) 47 Cr App R 166, 171-172; R v Lawrence [1980] 1 NSWLR 122, 131. The Crown must also remove any reasonable doubt raised by the accused's intoxication in determining whether the accused had formed the state of mind required for the offence charged: R v O'Connor [1980] HCA 17; (1980) 146 CLR 64, 71, 88 and 118; Coleman v R (1990) 19 NSWLR 467, 486; as well as any reasonable possibility that the act of the accused was provoked: Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601, 607, 612 and 628; or done in self-defence: Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645, 654, 657, 681 and 686.

That legal onus upon the Crown does not mean, however, that the Crown must bring evidence to meet every such "defence" which could possibly arise in relation to the offence charged. In every case, the accused bears an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that -- as I would prefer to put it -- there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence: cf Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168 and 171.

The authorities make it clear that such a reasonable possibility must be shown by admissible evidence. Some English authorities put the evidentiary onus as high as requiring an inference to be available that the act of the accused was in fact accidental or provoked or done in self- defence or so on: see, for example, Mancini v DPP (1942) AC 1, 12 (also at 8); R v Lobell [1957] 1 QB 547, 551; Bratty v A-G (Northern Ireland), 405-6 and 413; and the tentative view of Devlin J in Hill v Baxter [1958] 1 QB 277, 284-25, which was adopted by Gresson P in R v Cottle [1958] NZLR 999, 1014 (cf Cleary J at 1033). Others, and most Australian authority, are (in my respectful view) more in accordance with principle and logic, when they say that there must be evidence from which it could be inferred that there is the reasonable possibility that the act of the accused was of such a nature.

It was in that second sense, I believe, that Lord 'Morris intended the following passage in Bratty v A-G (Northern Ireland), 416:

"Before an explanation of any conduct is worthy of consideration such explanation must be warranted by the established facts or be supported by some evidence that has been given by some witness." [14]

48 His Honour continued by castigating both the prosecutor, and defence counsel, who had appeared at the trial, for their 'unseemly state of ignorance' of the relevant law.[15] In those circumstances his Honour said the trial judge had very properly intervened in an endeavour to avoid the jury being left merely to speculate upon the type of automatism that could be established by an acceptance of evidence led on the appellant's behalf.

49 We doubt whether it is strictly correct, as a matter of law, to speak of an 'evidential burden' resting upon an accused in relation to a matter such as voluntariness,[16] though the matter is perhaps semantic. It might be more accurate to say that voluntariness is an element of the offence that must be proved in every case, and that there is no onus of any kind resting upon an accused in relation to that element.

50 Nonetheless, it would be quite wrong, in our view, for a jury to be invited, in the absence of any evidence, to conclude that the acts done by an accused may not have been voluntary because of the possibility that he might have been acting in some kind of automatic state. It would be inappropriate, for example, to 'float' the possibility that the accused might have had an epileptic seizure, or blacked out for some other reason, at the time of the commission of the offence when there is absolutely nothing in the evidence to support any such conclusion. Youssef is significant, in that regard, because it makes clear that it is no part of a jury's role to engage in baseless speculation.[17]

51 The decision of the High Court in Barca v The Queen[18] is to much the same effect. The appellant, a Calabrian immigrant, was charged with the murder of his sister's husband. At his trial, evidence was led of a Calabrian custom to vindicate the honour of a woman by murdering the man who had dishonoured her, and to do so leaving a 'sign of honour' in the form of a cross upon the murdered man. The medical evidence was that the path of the two bullets fired into the skull of the deceased formed just such a 'sign'.

52 The prosecution contended that the accused had killed the deceased to vindicate the honour of the accused's sister, the deceased's wife. There was also evidence that, according to Calabrian custom, the prime responsibility for vindicating the honour of a woman rested upon her father, and that, in this case, her father lived close to where the deceased's body was found. In addition, there was evidence that the father had shot and killed his daughter's previous husband, and that he had threatened to stab his daughter to induce her to give false evidence at the accused's committal proceeding. Finally, there was evidence that the father had been incensed by the deceased's conduct, and had threatened him with dire physical consequences.

53 The accused did not give evidence, but made an unsworn statement in which he told the jury that there were things about the case that he did 'not want to say'. Defence counsel suggested in his address to the jury that that statement was consistent with the murder having been committed by the father. At the end of counsel's address, the trial judge told the jury that there was no evidence upon which they could find that the father was responsible for the murder, and that it would be wrong for them to acquit the accused on the ground that the father might have been the killer.

54 The High Court held that the trial judge had erred in directing the jury that they could not decide the case on the basis that there was a reasonable hypothesis that the father had murdered his son-in-law.

55 In a joint judgment, Gibbs, Stephen and Mason JJ said:

The remarks made by the learned trial judge when he intervened at the conclusion of the address by defence counsel could only have been understood as meaning that it would be wrong for the jury to accept that the evidence was consistent with the hypothesis that the murder had been committed by Carmello Barca. In other words, the jury were in effect directed to reject one of the main arguments put forward on behalf of the defence, and to decide one issue of fact in favour of the prosecution. This was a misdirection. It was for the jury to decide for themselves whether they were satisfied that the evidence as a whole was inconsistent with the hypothesis that Carmello Barca and not the applicant had murdered the deceased. Of course it was not proved that Carmello Barca had committed the murder. Moreover, the learned trial judge was perfectly correct in saying that there was no evidence that the applicant took the deceased to Carmello Barca's house or that Carmello Barca fired the shots that killed the deceased. However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted. The learned trial judge told the jury that there was no evidence that Carmello Barca was involved in the killing; this was incorrect, for there was some circumstantial evidence -- far too slight, it is true, to support a positive finding of guilt -- pointing to his involvement. The evidence showed that Carmello Barca had at least as strong a motive to kill the deceased as that attributed to the applicant, that he had been enraged at the deceased's behaviour and had in consequence threatened him and that he had threatened Mrs Petula in an endeavour to persuade her to give false testimony as to the time at which the applicant returned to her house after he had driven away with the deceased. In these circumstances it was open to the jury to think that the hypothesis that Carmello Barca had committed the murder could reasonably be based upon the evidence. Moreover, in the very special circumstances of the case, and particularly having regard to the evidence as to the custom amongst Calabrians, the evidence that Carmello Barca had killed Mrs. Petula's first husband might properly have been regarded by the jury as further circumstantial evidence supporting that hypothesis. It should therefore have been left to the jury to consider whether the suggested hypothesis that Carmello Barca had committed the murder was reasonable and consistent with the evidence since unless they rejected that hypothesis they could not have been satisfied of the guilt of the applicant. Further, the learned trial judge directed the jury that they could not understand the statement made by the applicant from the dock -- "There are some things with reference to this case that I do not want to say" -- as meaning that the applicant's family had committed the murder and that he was trying to protect them. It was not for the judge but for the jury to decide what meaning should be attached to the statement and what inferences should be drawn from it.[19]

56 The importance of this passage, for present purposes, lies in the proposition that 'a jury cannot be asked to engage in groundless speculation'. However, the point made in Barca was that the jury in that case had not been asked to do any such thing. There was ample evidence, in that case, to justify consideration by the jury of whether the wife's father, rather than her brother, was the killer.

57 In our view, the facts in Barca were a far cry from those in the present case. In the instant matter, not only were the jury being invited to conclude that the deceased had been having an affair, a finding that could only be based on the most flimsy of evidence, they were being asked to go much further. It was hinted that, in some mysterious way, and for some entirely unexplained reason, her putative lover might have shot her. Of course, there was not a scintilla of evidence upon which any such conclusion could be based. Nor was there any basis for an even more tenuous conclusion, namely that some person other than her lover was responsible for her death because of the 'affair' she was supposedly having.

58 In other words, we think that the jury in this case were being invited to engage in what Barca would have held to be 'groundless speculation'. The trial judge was not only entitled, but obliged, to point out in his charge that speculation of that kind should not play any part in their deliberations.[20]

59 Of course, it was perfectly proper for defence counsel at trial to invite the jury to consider whether it was reasonably possible that someone other than her client had killed the deceased. In a sense, he had no other defence. Such a suggestion was plainly within the jury's province. However, it seems to us that counsel went much further than that when she invited the jury to conclude, upon tenuous grounds, that the deceased may have been having an affair, and upon even more tenuous grounds, that if so, she may have been killed as a consequence.

60 The next matter to note is that, although his Honour initially directed the jury, as a matter of law, that they were not to speculate about the deceased having had an extra-marital affair, he later qualified that direction, at least to some degree, by repeating it, but describing it as having the status of a 'comment' only.

61 When his Honour later came to answer the jury's question, he did not repeat his earlier use of the term 'comment'. However, he balanced what he then said about not speculating by reminding the jury that, 'sadly, in this community, there are persons who are the victims of homicides for any number of reasons'.

62 We are satisfied that the trial judge at no stage withdrew from the jury their right to consider whether someone other than the applicant had committed this crime. His Honour reminded the jury, as had defence counsel, of the difficulty in discovering the truth as a result of the many years that had passed since the commission of this offence. In addition, he again reminded the jury, in emphatic terms, when answering their question, that the onus of proof rested throughout upon the Crown.

63 In all the circumstances, we think there was no perceptible risk that his Honour's direction to the jury that they ought not to engage in speculation could have led them to think that the applicant bore an onus of proof in this matter. We are not persuaded that, as a result of anything his Honour said to the jury, the applicant was deprived of any legitimate avenue of defence.

Ground 3 - Directions as to consciousness of guilt

The Crown says to you that there are two other powerful aspects of this case that point to the accused's guilt and they are his lies and his conduct, and it is to those matters that I now want to turn.

As a general proposition the prosecution can in certain circumstances rely on a process of inferences - there is that word again - that from the telling of a lie or lies or the carrying out of a particular piece of conduct, and that can be relied upon to demonstrate what is called an implied admission of guilt and it works in this way: if someone tells a lie or lies, and at the end of the day you think to yourselves, "That was deliberate, it was conscious, it related to the crime before us, and that it was done in an effort to shift attention from the accused, because he realised that if the truth came out he would be connected to the crime", then you can use the lie. Does that make sense? You need to go through a step of reasoning. In this case the steps of reasoning are relatively simple until you get to the last one and that is, what is the motive behind the lie?

Here the prosecution and defence cross swords. The prosecution says to you the lies were told to deflect the attention of the investigators, or any potential investigation, because he appreciated that if the truth came out he would be implicated in the crime. The defence, on the other hand, says to you, "Yes, he told lies. Yes, they were deliberate. Yes, they had to do with Edwina's disappearance. But that his motive was the one he conceived shortly after her death, and that was he thought he would be in the frame and therefore out of panic he determined to lie and in effect succumb[ed] to a web of lies that he perpetrated to many people over many years".

The defence says to you, you should not be satisfied beyond a reasonable doubt that the true reason for lying was to avoid implication in the crime, rather it was panic.

I think that point has probably become obvious in the course of the addresses and, if not, when Mr Boyle gave evidence yesterday. You had these two competing matters. You must be satisfied beyond reasonable doubt that the reason for him and the only reason for him telling the lies was to avoid detection as he thought he might be implicated in the crime, that he had an involvement in the crime.

The prosecution points to a number of lies. There are in effect four separate, although again they all seem to be intertwined but they are as follows: that she had run off, Edwina had run off with another man, the truckie Ray. That Edwina had left a note saying that she was leaving with another man. That Edwina had been seen in other places and was still alive, and that the bin contained carpet glue which had become toxic.

Each of these lies is either admitted or not disputed. As I have said to you, the real issue is what do you make of these lies.

A lie or the conduct, and I will come to that in a moment, of an accused may, depending on the facts, constitute what I have described to you as an implied admission of guilt. In some cases you may have an express admission of guilt, this isn't one of them. In other cases an accused person without expressly admitting the guilt may say something which is a material or deliberate lie or may carry out a particular conduct from which you may infer that he has impliedly admitted one or all of the elements charged against him. So the Crown here relies upon both the lies and the conduct.

As I have said, it would be wrong for you to simply jump from the proposition that he has lied about certain things and that therefore he is guilty. The law says, and indeed this will not surprise you, the law says it simply does not follow, and one of the reasons it does not follow is exemplified by this case where there is said to be another reason for lying.

You can use a lie as constituting an implied admission by the accused but only if a series of elements establish to your satisfaction, and I repeat again that it is not a situation of saying just because he lied he must be guilty.

I will set out the elements but it is the fourth element that I want you to focus on because the reality is in this case it is the fourth element that you need to consider carefully.

The first element is the asserted lies must be identified precisely. That has been done, I have gone through those with you, and Mr Silbert went through them with you, and the defence does not take any great issue with them.

Secondly, you have to be satisfied that it is a deliberate untruth. Again, that is conceded by Mr Boyle in his evidence.

Thirdly, you have to be satisfied that the lie relates to a matter in question, i.e. to the circumstance of the crime. Again, that does not seem to be an issue because Mr Boyle accepts that he lied about the whereabouts of his wife when he knew that her remains were in the drum and later in the bin.

In this case you may well think that each of those three elements have been made out. It is the fourth, it is one I have already said something about that you need to be satisfied about. You need to be satisfied that the only reasonable explanation for telling the lie is that the accused believed that if he told the truth he would be implicated in the offence.

Even if it is a deliberate lie, you would need to take into account the possibility that there may have been an error or an untruth arising from confusion of the accused or told inadvertently or arising out of embarrassment or panic. In other words, was the lie told to deceive investigators or to shift attention from the accused as a potential suspect so that the truth would not emerge and the truth would implicate him in the crime? Alternatively, is there a reasonable possibility that he told a lie out of a sense, in this case out of a sense of panic and then was forced to perpetuate the lie for the next 23 years?

Each of the three conditions must be satisfied before you can use the lie as an admission of guilt but, as I have said to you, it is that fourth point, what was the motive for the lie, that you need to focus on.

If you are satisfied beyond reasonable doubt that the lie was told to avoid detection, because he thought that he would be implicated in the murder of his wife, in effect because he was the killer, and if you are satisfied of that beyond reasonable doubt, then you can use that fact or that inference in relation to your ultimate conclusion as to the elements of the crime.

If, on the other hand, you find there is a reasonable possibility that the lie was told because of panic, and then was perpetuated because of the tangled web that he wove, then the lie is to be put to one side and cannot be relied upon in your consideration as to whether he is guilty or otherwise.

I hope that is clear. The real point is that it is not as simple, as I hope that exercise has demonstrated, as saying, "He lied, therefore he's guilty". You simply cannot engage in that exercise.

...

What is said ... is that those lies are explicable on the basis of his belief that if he told the truth he would be wrongly implicated in the offence. To use his words, he would be "in the frame", that's his evidence, and Ms Dixon invited you to conclude that once he started telling the lie it became self-perpetuating.

The prosecution says that the lie was told to shift attention from himself because he appreciated if the truth came out he would be identified as being implicated directly in the crime.

Now, I want to remind you again, and finishing on this topic, that you must be satisfied beyond reasonable doubt that they were deliberate lies and were told solely to avoid detection and to just put the investigators off the scent because of this appreciation of his own - avoiding the implications of his own actions.

I remind you there might be reasons why an accused tells a lie other than to avoid implication in the commission of a crime such as panic. And if at the end of the day you take the view that that is a reasonable explanation for his behaviour and causes you to have a reasonable doubt about how the prosecution puts the case, then you would put the lies to one side.

Now, even if you find it was a deliberate lie on his part or a lie carried out to avoid detection with no other reasonable explanation, it's not the same as finding him guilty of the crime. You still have to examine the evidence, all the other evidence, including what would be regarded by you as an implied admission of guilt, but you still need to examine all the other evidence in determining whether you are satisfied beyond reasonable doubt. Now, are you clear on that? It is vital that you don't jump simply from the view that "he lied" to "he's guilty", you need to still look at all the evidence but you are entitled to use your finding as to the lie as part of the evidence. Of course, if you find that he lied because he thought he would be "in the frame" then you put any of the lies to one side.

The same principles apply to his conduct. And, indeed, it's interwoven with the question of the accused's telling of lies. The prosecution relies upon the conduct of the accused between October 1983 and October 2006. There are two aspects of it. One is the forgery of the note... And the second is, his disposal of the remains. And when I say disposal, his concealment is perhaps a better expression...

The prosecution says that he wished to continue this concealment of the body so as to avoid detection and therefore you can conclude that he was involved or implicitly involved in the crime and like the lies that constitutes an admission of guilt.

Mr Boyle says there is another reasonable explanation which you must consider and that is, that as part and parcel of the panic and the scheme that he had devised, placing the remains in the bag, in the bin and the drum was all consistent with his belief that in doing so he would avoid being put unjustly in the frame.

It is entirely up to you as to what you make of those two competing contentions, but again in the same context as the lies, you would need to be satisfied beyond a reasonable doubt that he did so, that that conduct, the note and the concealment of the remains, was directed towards putting investigators off the scent, it was directed to avoiding implication in the commission of the crime himself.

So it's the same reasoning process as the lies. You have to go through the same analysis. Again, don't just jump from the proposition, he forged the note, he hid the remains, therefore he's guilty. You would need to look at all the evidence and particularly the explanation that he gives for that conduct.

Now, the process of looking at this evidence is very much similar to the process of looking at the lies. Firstly, you need to be satisfied beyond a reasonable doubt that he engaged in the conduct which is alleged by the prosecution. Now, he admits that he did, he admits he forged the note, he admits he concealed the remains, that's really not an issue. Secondly, you need to be satisfied that it's material or a significant circumstance to the crime that you are considering. Well, clearly it is. Clearly the whereabouts of her remains and the presence of a note have a real bearing on what transpired on the 6th and the 7th.

Thirdly, and this is the critical part, you need to be satisfied that the only reasonable explanation for him acting in that way was because he believed he had committed the crime and he believed that if he did not do that he would be implicated in it, if he did not conceal the body or forge the note.

Again it comes back to the proposition that we have discussed throughout and that is, are you satisfied beyond a reasonable doubt as to this part of the case? Again, the prosecution case doesn't fail because you may not be satisfied but you need - on this basis, but you may, but if you are not satisfied you put it to one side. On the other hand, if you are satisfied, it is an implied admission of guilt and you can then use that in determining whether on all the evidence you are satisfied beyond a reasonable doubt that the elements of the charge are made out.

In doing this exercise and in looking at the lies you use your experience and knowledge of human nature. You bear in mind the fact that people may, and do, do things for bizarre reasons but at the end of the day you look at the whole of the evidence in the case and apply your experience and your judgment to the evidence as it's been presented.

And for the sake of repetition, but because this is such an important case, I remind you that if you conclude that there is a reasonable possibility that he engaged in such conduct with the note and its forgery and the concealment of the remains because he panicked and believed that he would be put in the frame, so to speak, and perpetrated that course of conduct over many years, then you cannot be satisfied that the only reasonable inference from the conduct of the accused is that he was admitting his guilt, because it follows you have a reasonable doubt.

As I say in conclusion on these topics, this is where your common sense and experience comes in and you will apply all of that, your individual and group common sense and experience that you have in looking at this evidence, bearing in mind the onus that the Crown bears of the necessity to prove each of the elements beyond reasonable doubt.[21]

66 No exception was taken to his Honour's charge regarding lies as consciousness of guilt.

67 Before this Court, only one submission was put forward in support of this ground of appeal. It was said that his Honour erred in directing the jury that they could use four carefully designated lies, and certain acts, as indicating an 'implied admission of guilt' if satisfied that they were told 'in an effort to shift attention' because the applicant realised that 'if the truth came out he would be connected with the crime'.

68 It was submitted that this was a misdirection because the applicant's fear of being 'connected with the crime' was the very reason that he gave, in his evidence at the trial, for having told the lies.

69 Perhaps in an ideal world his Honour, when directing the jury on this matter, would have prefaced the term 'connected' with an adjective such as 'wrongly'. However, a trial judge's charge should be read fairly, and not perversely. It should also be read as a whole. Juries must be given credit for common sense and intelligence. In our view, it is entirely inconceivable that the jury in this trial would have concluded from what his Honour said that, even if they accepted the applicant's explanation for having told the lies upon which the Crown relied, those lies could still be used as evidence of consciousness of guilt.

70 As with many points raised for the first time on appeal, a good indicator of whether there is any substance to them can be found in the way in which defence counsel viewed the matter at trial. Had there been any risk of the jury misunderstanding his Honour's charge, in the way for which the applicant now contends, it is difficult to imagine that the point would not have been raised below.

72 We have already concluded that there is no merit in any of grounds 1 to 3. The applicant's case does not get any stronger by aggregating those grounds. Ground 4 must fail.

73 As previously indicated, the applicant was sentenced to a term of 21 years' imprisonment, with a non-parole period of 17 years. He challenges that sentence, relying upon the following grounds of appeal:

1. The sentence imposed is manifestly excessive.
2. The learned sentencing judge erred in his treatment of what features of the case could amount to aggravating circumstances warranting an increase in penalty.
3. The learned sentencing judge erred in finding that the applicant was lacking in remorse.
4. The learned sentencing judge erred by failing properly to take into account the applicant's age and state of health.

75 In our view, a sentence of 21 years' imprisonment for a crime of this nature was by no means excessive. In coming to that conclusion, we have had regard to two Sentencing Snapshots, No 27 which deals with sentences for murder between 2001 and 2006, and No 84 which covers the period 2007 to 2008. In broad terms, the average length of imprisonment imposed on those sentenced for murder between 2001 and 2006 was, consistently, of the order of 18 to 19 years. The average non-parole period tended to be about 15 to 16 years. The figures show that in 2007 to 2008 the average total effective sentence rose to approximately 22 years, with an average non-parole period of 18 years.

76 The sentence of 21 years imposed in this case is broadly consistent with the average sentence for murder, as set out in those Sentencing Snapshots. Yet this was a particularly callous crime with, as will be seen, a number of aggravating features. The applicant showed no remorse, and pleaded not guilty. The argument that both the sentence, and the non-parole period of 17 years, were manifestly excessive is simply untenable.

I regard your decision within hours of the death of your wife to embark upon a plan of deceit and dissembling about the disappearance of the deceased - your devoted wife and the mother of your two children - as a significant aggravating factor. I am satisfied that the law requires me to take these actions into account.

...

I also regard the manner in which you dealt with your wife's remains as an aggravating factor, although I take into account that this seems to have been part of your plan to avoid detection for her murder and as such should not be doubly counted against you.[22]

78 We agree with his Honour that the applicant's many years of deception, and dissembling about the disappearance of the deceased, constituted a significant aggravating feature of this offence. To make it seem that the deceased had selfishly, and uncaringly abandoned her children in order to run off with 'Ray' was an act of cruelty, likely to cause those children and other family members additional grief and distress.

79 This ground was expressly abandoned, as it ought to have been.

Ground 4 - Applicant's age and state of health

I have been provided with a report from your general practitioner, Dr Colin Madeley, concerning your medical history. In February of 2003 you were diagnosed with Type 2 Diabetes. You suffer from hypertension and intermittent depression. Your diabetic condition has a complication which has led to mild kidney damage. You need regular management of your blood sugar levels and your condition can be controlled by a combination of medication, a healthy diet and regular exercise. You will need regular medical attention whilst in gaol to prevent any debilitation as a result of your diabetic condition.

Incarceration may, according to Dr Madeley, "have an impact on these issues". If healthy eating and exercise are limited or precluded, the consequences of poor control may include blindness, vascular disease and/or renal failure. I accept that your health may suffer in gaol and that your longevity may be reduced.

I have taken your age and your health into account in determining the appropriate sentence.[23]

81 There is nothing to indicate that the sentencing judge gave insufficient weight to the applicant's age, or to his state of health. The sentence ultimately imposed properly reflects those mitigating factors.

82 None of the grounds in support of either the application for leave to appeal against conviction, or the application for leave to appeal against sentence, has been made out. Accordingly, leave to appeal should be refused.

[8] Alexander Pope, An Epistle to Dr. Arbuthnot (1734), line 203.

[9] (1995) 78 A Crim R 226 ('Clarke').

[10] Ibid, 230-1 (footnotes omitted). Emphasis added.

[11] [1911] HCA 66; (1911) 13 CLR 619.

[13] (1990) 50 A Crim R 1 ('Youssef').

[16] The position is different in relation to defences such as self-defence, or provocation. In that context it is clear that an evidential burden rests upon the accused. If that burden is not discharged nothing need be said to the jury about those defences.

[17] This has nothing to do with the jury's undoubted right to engage in what the Americans call 'jury nullification'.

[18] [1975] HCA 42; (1975) 133 CLR 82 ('Barca').

[20] In some circumstances, it may be appropriate to instruct a jury that 'fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt'. The same may be said of 'fanciful possibilities'. Such directions can be dangerous. However, where the defence has invited the jury to consider such possibilities, a judge may be justified in telling the jury that their existence does not negate proof beyond reasonable doubt. See generally R v Hettiarachchi [2009] VSCA 270 and the authorities cited at [53].

[22] R v Boyle [2008] VSC 71, 73-4.