R v Chang [2003] VSCA 149

5. Neither of those explanations can be given in the present case and the reason is, I regret to say, to be found in the way the law has developed on this issue in the last decade, rather than any defect in understanding of judges and counsel involved in criminal trials. The law on the subject was looked at, if but briefly, by the High Court only last month in Dhanhoa v. The Queen[2], but in ways which evidenced three somewhat different approaches to the issue but without giving any new assistance to trial judges and lawyers. An intermediate Court of Appeal (and trial judges) can do little else than to attempt to apply Edwards, as it has been subsequently interpreted in cases such as Zoneff v. The Queen[3]. Unfortunately, it is the complexity of a conventional Edwards direction and warning, and its need to examine and repeat often damning evidence, that has frightened trial judges and lawyers appearing for the accused into recharacterising evidence which otherwise would be treated as evidence of consciousness of guilt. It is remarkable that a rule, the origin of which can only have been to ensure a fair trial[4], has so frequently been seen as likely to cause unfairness or prejudice to the accused if followed to the extent apparently laid down in Edwards. If that be the case then, with the greatest of respect, it is perhaps time that the High Court looked at the detailed four-pronged requirements of Edwards so as to see whether the interests of justice might equally be served by a more succinct, if no less emphatic, warning as to the possible risks of drawing inferences too readily from this kind of evidence.

8. The device, as employed in the present case, of not describing certain evidence with the apparently pejorative term "consciousness of guilt", may serve on some occasions to draw the teeth from any complaint that this evidence may have been misused by the jury. In a complex circumstantial case, such as Osland v. The Queen[5] and R. v. Camilleri[6], particular examples of evidence of subsequent statements and acts relevant only to the drawing of an inference of guilty intent, may be lost or at least sufficiently hidden in the complexities of a long trial in which much more direct evidence of one kind or another is adduced, so that avoiding the use of terms such as "consciousness of guilt" may to a degree hide the significance of that kind of evidence. Arguably, if the prosecution is not going to be permitted to argue that inferences relevant to guilty intent should be drawn from evidence of later circumstances, then that evidence should be excluded entirely from the trial as irrelevant. More often than not, nevertheless, such evidence may be admitted for a limited purpose such as showing that some account of the accused cannot be relied upon or, perhaps not so frequently, to support a circumstantial case intended to establish the res gestae.

11. As Charles, J.A. has demonstrated in his reasons given herein, that cannot be a sufficient explanation in the present case except in so far as lies other than those identified by the trial judge were used to show that the applicant's versions of events on each occasion were unreliable. There could, however, be no basis for the prosecution to rely upon those events proved which followed the death of the victim, whether it be the setting up of a "false trail", the hiding of the body or the preparation and carrying out of the proposed plan for disposing of the body, unless it were to show that the applicant had a guilty mind at the time the victim met her death. It was not disputed at the trial that the applicant was responsible for some blow or some action which led to the death of the victim at the house at Melton on the Monday preceding the applicant's arrest the following Friday. So the "post-offence conduct" was no longer relevant to establishing a connection between the applicant and the events leading to the victim's death. I have already stated elsewhere, and still maintain, that such a description for evidence of this kind, though suitably neutral, might lead falsely to the assumption that such retrospectant evidence is never relevant to the making out of a circumstantial case that an accused committed acts necessary to constitute the elements of a charged offence.[7]

14. Whatever be the appropriate description of this evidence, the need for some warning as to misuse of evidence of this kind arises whenever the purpose of its tender is to establish the guilt of the accused, where it can be said that lies or conduct such as flight of itself may lead the jury to the conclusion that the accused is guilty, or more precisely that the accused had a guilty mind at the time the facts and circumstances making up the constituent elements of offence took place.[8] Although a prosecutor's failure to use the conventional expression "consciousness of guilt" may serve to take some of the sting out of its case, the need for appropriate direction cannot be averted merely by giving it a less colourful description. If the evidence and its use by the prosecution is intended to show that such lies or other acts could not have been perpetrated unless the accused was implicitly admitting his or her guilt, then the need for the warning remains. If a lesser use of that evidence by the jury is intended and sought by the prosecution, then the absence of a warning will ordinarily cause no harm.

17. In the present case, as the judgment of Charles, J.A. so clearly demonstrates, the prosecution, after discussion and direction by the judge, refrained from using the words "consciousness of guilt", except in relation to two specified lies, but counsel still persisted in using the other lies and more particularly the applicant's conduct in seeking to dispose of the victim's body and in deflecting attention from him as proof of his guilty mind and that he had intended the murder of his victim. From the outset of his address prosecution counsel made clear that he proposed to demonstrate that the "timetable ... of behaviour ... over that week, from the Monday through to the Saturday, demonstrates an unanswerable case of guilt of murder ...". Then, at the very end of his address, he asked the jury to consider the whole of the circumstances which surrounded the events during that week, including the secretion of the body, the purchase of disguise, camping material and fuel and the attempts to get rid of the body, together with the lies, "all of it utterly inconsistent with what is suggested as an innocent explanation of events that took place". But there was no warning, and in fact no warning was sought, that the jury might misuse this material, might too easily treat establishment of the "negative" as proof of a positive admission of guilt, or of the possibility that the various steps might have been taken for a purpose other than from a realisation of guilt, such that the requirements of Edwards were not fulfilled. Doubtless a proper direction as to circumstantial evidence was given but such warnings and requirements as are contained in a conventional circumstantial evidence case are not sufficient, as things stand, to satisfy the rigorous requirement of Edwards and of the subsequent relevant High Court decisions, as applied in this Court. As in Nguyen this was a case where the applicant's subsequent conduct could only be used to establish guilty intent and it was obvious that the prosecution was saying that every single act supported that inference. An appropriate warning was therefore required.

20. Consequently, for the reasons given by Charles, J.A. in his judgment, I

consider that this application must be granted and the appeal allowed, so that there should be a new trial of the applicant.

25. On 12 November 1999 Senior Constable Michael Atkinson was travelling on the Great Ocean Road near Lorne when he observed a vehicle parked deep into the bush at the Big Hill under some trees. He returned to the car and on examining it found it contained camping equipment, two containers with hydrochloric acid and a large bag of garden lime. Near the car he found a hole in the ground and a spade, and nearby Gabriel Omar Chang, the applicant, face down in the scrub. Chang, whose hair was white, begged for help, claiming that he had been abducted by two Lebanese men from Prahran and brought there, leaving Atkinson with the impression that the others were hiding in the vicinity. He said that he owed $3,000 drug money and that he could be killed for this. Atkinson said, looking at the hole in the ground, "I think that was meant for you". The man then stood up, and Atkinson realised that his white hair was a wig. They then walked back to the police car and Chang, very agitated and distressed, gave his name as Dave Sampson, and his address as 13 Station Street, Prahran.

28. Atkinson then used his police radio to call for backup and was repeating the man's story, when he was attacked by Chang from behind. Atkinson had in fact been hit with considerable force on the head by a fire extinguisher, and thrown across the seat of his car. Chang then activated the fire extinguisher, the contents of which clogged Atkinson's eyes and throat as he struggled with Chang. Atkinson used his capsicum spray and Chang then escaped into the bushes.

31. A short time later other police officers arrived and immediately a search was made of the nearby car. In the boot of the car was found the body of Dianne Psaila, a 27 year old woman.

34. 11 Chang was later charged with the murder of Ms Psaila and on 18 August 2000 he pleaded not guilty to this charge. He later pleaded guilty to a separate presentment alleging two counts of theft, one count of burglary, one count of causing injury recklessly and one count of trafficking in a drug of dependence.

37. Chang's trial for the murder of Dianne Psaila commenced on 2 February 2001 and on 8 February he was found guilty on this count. On 11 February he was sentenced to be imprisoned for a total of 18 years and 6 months, and the judge fixed a non-parole period of 13 years and 6 months.

40. Chang now seeks leave to appeal against conviction on the ground that the conviction was unsafe and unsatisfactory and on the following further grounds added by way of amendment, in failing to direct the jury -

(2) upon the defence of accident;

(3) upon the absence of motive on the part of the applicant;

(4) upon consciousness of guilt in relation to post offence conduct and lies; and

(5) upon the fact that the applicant had no prior convictions.

Argument in the appeal was principally directed to the ground relating to consciousness of guilt.

The prosecution case

46. The deceased was 27 years old in November 1999, and had lived at home in St. Albans East with her father. On Monday 8 November her father left home at 8.30 in the morning to go to work, leaving his daughter still in bed. They had a brief conversation before he went, about a job of work that the father was going to do on a car. He asked his daughter to get in touch with a friend of hers who worked in the paint business so that they could organise a paint match-up for the sunroof. This friend was the applicant. The deceased was due to give a car panel for this purpose to the applicant on that Monday. When the father left for work, the car panel was in the garage where he told his daughter she could find it and give it to Chang. When he returned later that day his daughter and the roof panel were both gone. He was never to see his daughter again.

49. On that Monday afternoon the applicant called in at the workplace of the deceased's brother, Denis Psaila in Sunshine, and said he was looking for Dianne, and made a particular enquiry about the roof panel. While the applicant was with Denis Psaila, he used his mobile phone to ring Charlie Psaila, the father. He enquired about the whereabouts of Dianne and the panel. By that time, however, Dianne Psaila was already dead, and her body, along with the roof panel, was already in the boot of the deceased's car. The applicant's later admissions to police in his record of interview, established that at the time of that phone call he had already placed the body in the boot of the deceased's car, and had taken the car to the home of a friend where he left it in a garage, locked up and out of sight.

52. On Tuesday 9 November, Charlie Psaila went to a filing cabinet at his home where he kept money and financial records. On examining that cabinet he found that a metal cash tin which he believed contained over $3,000 in $100 notes was gone. Also missing was a visa card. Mr Psaila was concerned that his daughter had taken the visa card and the money and did not then call the police. As the week continued and his daughter did not return he became increasingly concerned. Finally, on Friday 12 November he was contacted by police and informed that his daughter's car had been located in the Lorne area and that her body was indeed in the boot of the car.

55. The applicant was at this time employed at a paint factory in Footscray and had a relationship with a lady called Veronica Pum. They shared a house at 13 Bridge Road, Melton, with children. Miss Pum's evidence was that the week beginning 8 November started normally. The accused was, however, due to go to work on the Monday but did not do so, saying that he had had an injury on his way to work and had hurt his back. During the week he arranged to take sick leave and therefore did not go to work on the Tuesday, Wednesday or Thursday of that week. On Wednesday 10 November the applicant came in to his workplace and met a friend, James Adams. Adams was the owner of the house at which the applicant had stored the deceased's car, although Mr Adams was not aware of this. Adams had been with the applicant the previous night, and during a conversation the applicant had talked about the possibility of "taking off" and said that "some things had been done that could not be undone". Then on Thursday 11 November, Mr Adams went to work and that night, while he was still at work, received a telephone call from the applicant who said "Look, well, meet me in the regular spot where we usually meet", and they agreed to meet at a place where they often met to have a chat and a drink. Mr Adams went there at 8.30 that night and waited until the applicant arrived. The applicant arrived in a car driven by one Adrian Cyril, also one of his friends. That night Mr Cyril drove the applicant to Brunswick for the purpose of organising the sale of marijuana which the applicant said was sold for something like $700. The Crown case was that the applicant was setting about "cashing himself up" for what he proposed to do at the end of the week. Later that night Mr Adams was asked by the applicant to go and buy him a few things, a torch, batteries, underwear, socks, hair dye and a parsley shredder. Mr Adams said "Well, what are you up to?" and the applicant replied "Some things you can't change. You just can't go back on."

58. Later on the Thursday night Mr Adams left the motel where they had been drinking, and went to Deer Park with the two $100 notes that the applicant had given him. He bought everything he was asked to get except the hair dye and went back to the motel where the applicant was. The applicant, however, wanted hair dye, and later on they drove off to a supermarket to get it, returning to the motel at around midnight. Mr Adams then went back to his home, but returned to the motel at around 8 o'clock the following morning, Friday 12 November. Meanwhile the applicant had tried to dye his hair, but without any real success. Mr Adams and the applicant then left the motel and drove into the city, and went to an army disposal store where the applicant picked up a hiking pack, a fold-up shovel, a pick, a sleeping bag and a camping mattress. He said he was "going bush", and going camping to get away from things. He paid about $500 in cash for his purchases.

61. Mr Adams then left the applicant at the Victoria Market for a short time and picked him up a bit later. By this time the applicant was wearing sunglasses and a cap. As they drove off along Ballarat Road, Sunshine, the applicant asked Mr Adams "Listen, will you go into Bunnings for me and buy two bags of garden lime and some brick acid", which Mr Adams did. They then drove to Mr Adams' house in Station Road, Melton. It was at this place that the deceased's car had been stored with her body in the boot.

64. Mr Adams then helped the applicant to get his purchases out of the back of the car and loaded them into the back seat of the deceased's car. The applicant in fact poured some petrol on the back seat of the car, his purpose being to remove some odour in the car. The applicant then got into the car and said "I'll be in contact", pulled out of the garage, put on a blonde wig and the cap and drove off without saying another word. The deceased's body was obviously still in the boot of the car at that time. According to the evidence, the next person to see the applicant was Senior Constable Michael Atkinson. The events which followed have already been described.

67. After the applicant escaped from Senior Constable Atkinson, detectives from Torquay CIB arrived and discovered the body of the deceased wrapped in a doona or sleeping bag in the boot of the car, and set off in pursuit of the applicant. Some time later on the next afternoon the applicant was in fact found in the same area. He had hurt himself during the course of the night and had damaged his arm. He was apprehended by police not far from where the initial confrontation had taken place. He was then taken to Lorne police station where he was interviewed by police officers. He gave a brief account of what had occurred, and was further interviewed at greater length on 16 November.

70. The body of the deceased was taken to the Coronial Services Centre where it was examined by Dr Matthew Lynch, a forensic pathologist. Dr Lynch said that there was a grey bloodstained jumper wrapped around the head of the deceased with a knot tied at the front. Once removed, underneath there was a second garment, a black V-neck top, which was also tied around or covering the head area. On examining this black top, Dr Lynch found what he described as an elliptical defect, a semi-circular hole in the black top, and the hole in the top corresponded to an injury on the left side of the forehead of the deceased. The body was in a fairly advanced state of decomposition. On the left side of the deceased's forehead was a two centimetre wound, over the site of a crack or fracture in the skull, measuring four centimetres in length. On the margin of that fracture there was black material embedded in the bone of the outer table of the skull. That black material was of similar appearance to the material of the V-neck jumper or the V-neck top that was over the head. Later tests conducted both on the material taken from the wound and on the jumper itself proved that the material was from the same source, establishing that the material in the wound came from the jumper.

73. The prosecution contended that the applicant's account of what had happened was "pock-marked with lies about very important matters". In his first interview with police officers, the applicant said effectively that the death of Dianne Psaila was an accident. He said he had hit her and she had hit him back. He said that he had grabbed her in his house in Melton, that it was just the two of them at home at the time. He said she had come over to tell him something about heroin and that she had come to him for help in relation to money. He said he had tried to help her out as much as he could. The applicant said that the deceased began arguing and he tried to calm her down. He said she "freaked" on him all of a sudden and he hit her. He said "I didn't mean to. I don't know". After he had hit her she had obviously fallen. He said "I tried to get a pulse, I couldn't feel anything." He said he thought she hit her head - he hit her on the head or the throat and that she fell and hit her head on the corner of the lounge which had a wooden armchair section to it. He said she was not moving and he could see blood or injury to her eye area. He said he panicked and did not know what to do, and took her in the car and just left her somewhere. He said when he put her in the boot she was not breathing because he had felt to make sure and there was no response. He therefore panicked and drove away. He said he could not remember how hard he had hit the deceased and that he might have hit her with an open hand on the throat.

76. When the applicant was interviewed on 16 November, there was a more lengthy conversation on video tape. This time the applicant said that the deceased wanted more money off him, so she could redeem jewellery she had sold at pawn shops in order to buy heroin. She started going on about money. All of a sudden, for no apparent reason, she started hitting him. He said he pushed her away and she continued to hit him, he hit her with an open hand, but could not recall how many times he struck her. After she hit the couch arm piece, she fell to the ground. He felt for her pulse but there was nothing. He said he checked the pulse in the neck, arms and legs. The bleeding from the eyes, or in the area of the eyes, occurred so he took off the black jumper, and covered her head with it because he could not stand to see her face in that condition. Later in the interview he said that there was a fair bit of force behind the blows that he had in fact delivered, and he tied the jumpers around the head because he did not want blood going everywhere in the house. When asked about the black jumper and the hole in it, the applicant said "I went up later on, and I hit her in the head. Yeah, because I didn't know, I just hit her, you know, just to see if she was moving at first, you know." When asked what he hit her with, he said, "It was a meat tenderiser" and he was just knocking her about to see if she was feeling anything. He said "That's when I, I think I hit her across her head, I think, a couple of times to see if she was moving, but I didn't think that I hit her that hard." The evidence, I should interpose, included that the applicant had been trained and instructed in first aid. The applicant said that he had hit the deceased with a meat tenderiser to see if he could provoke any movement from the body. Apart from trying to see if she was alive by hitting her with a meat tenderiser, just tapping her, as he described it, to see if she was alive, he said "At first I was kicking her, you know, if she was still moving too, but nothing." He said he could not touch her with his hands, and that's why he used the meat tenderiser. Again he said that during this, he "just panicked", he had "really panicked".

79. Later in the interview, he was asked about the money which had been missed from Charlie Psaila's home. At first he said he knew nothing about it, but when asked later he said "I did break in there, all right. I broke in there to get a bit of money to take off as well. I'm not going to lie no more, all right."

82. The armrest on the couch was taken away by police and tested, but no blood was detected on that piece of wood, or in the area of the armrest.

86. At the outset of the trial a discussion took place between the prosecutor and the trial judge in which the prosecutor indicated that he sought to use as evidence of consciousness of guilt on the part of the applicant the conduct immediately after the death of the deceased, secondly the applicant's actions leading up to the preparation for actual attempt at flight, and thirdly what was said to be a series of very significant lies throughout the record of interview, as to which the prosecutor said he would limit them to areas of principal significance, namely, the fracture of the skull which was clearly demonstrated to have been caused by a substantial blow. This, it was submitted, demonstrated that there was an animus towards the deceased which caused that blow to be delivered. The judge, however, raised a concern as to how one differentiated between consciousness of guilt of unlawful killing and consciousness of guilt of murder. His Honour said that the alleged lie relating to the fracture of the skull related to the existence of a possible animus bearing upon the intention with which the acts were concerned, and it seems then to have been accepted without further argument that save for this lie the applicant's post-offence conduct and lies would not be put to the jury as consciousness of guilt. Rather surprisingly the prosecutor made no attempt to rely upon the decision of Woolley, Whitney and Rayment[9] in which the Victorian Court of Criminal Appeal rejected a submission that a trial judge should have directed a jury that the lies in that case might have been evidence of consciousness of guilt only of manslaughter, or to being an accessory after the fact, both being alternatives to murder which were there left to the jury. The Court however took the view that it would be "fanciful to require as a precondition to possible use of the conduct that the accused had turned his mind to particular alternatives such as murder or various categories of manslaughter." The decision in Woolley was quoted at length with approval in R. v. Rice[10]

89. Be that as it may, the prosecutor accepted the judge's ruling. When he came to address the jury in opening, after putting to the jury the substance of the facts set out above, he completed his opening in the following way -

"That, in broad sweep, is the evidence which will be led before you, and upon which you will be ultimately asked to conclude that the accused man has told a number of lies to the police about the way in which Dianne Psaila died, about his conduct after her death, and it's put that he told lies in the record of interview, that in a careful and calculated manner, not in panic, he waited days after the killing to dispose of the body, in a careful way, preparing to dispose of that body with the acid and the lime, to obtain as much money as he could in the meantime and disappear without a trace, in disguise. All of those matters are matters about which it will be ultimately put to you that you can be satisfied to an appropriate standard of proof showing that the accused man was possessed of the murderous intent at the time Dianne Psaila was killed and that his actions killed her."

93. In his final address the Crown prosecutor said that the applicant was an "unmitigated liar". He put it that the timetable of behaviour over the week of the death "demonstrates an unanswerable case of guilt of murder against the accused man". He said the applicant was "a careful and calculating user" of others and that the burglary of the deceased's father was "a cold and callous" act to aid his own flight. He set out in detail the post-offence conduct, saying that it did not reveal "a man in panic, or in distress or a victim of circumstances". He said the statements of the applicant that he had tapped the head of the deceased were "the most terrible lie". At one point he said that the applicant's lies concerning his behaviour that week "betray him as one saving his own skin". In closing his final address, the prosecutor said -

"In any event, when you consider the whole of the other evidence, the whole of the circumstances that surround the events that follow that week, the things that you know are established, the conduct during the week of the secretion of the body, the theft from the father, the acquisition of disguise and camping material, and then what happened down at Lorne, when his attempting to get rid of the body with spare fuel on board the car so he doesn't have to stop at a petrol station, and then the lies to the police about all those things, all of it utterly inconsistent with what is suggested as an innocent explanation of events that took place. So on two levels, the lie itself, I say, is something which stands apart and is a very important matter which determines this man's guilt for you about a crucial matter. And the balance of his conduct, which is seen from the records of interview to be, as I said, pock-marked with lies. You reject that lying account, and that leaves you, it is submitted, with the only proper verdict available in this case to you, and that is one of guilt of murder."

The prosecutor did not, in a powerful final address, in terms refer to "consciousness of guilt".

99. Defence counsel in address the jury said the central issue was whether the act which caused death was done with an intention to kill or to cause really serious injury. He dealt with the lies in the record of interview. He described the post-offence behaviour as dreadful, explaining it however as done in a "desperate situation", and being "understandable for somebody who has killed somebody".

103. In his charge, the trial judge said that the Crown relied upon "a special lie" concerning the circumstances in which the deceased sustained the fractured skull. The judge commenced his directions upon consciousness of guilt saying that "the important lies" were related to "that aspect" of how the deceased received a fractured skull. His Honour then gave conventional directions in relation to these lies in accordance with Edwards v. R.[11]. The judge said that other lies and conduct could not be used as consciousness of guilt. His Honour said -

"The only statements made which can be considered in the context of this instruction that I have just given you concerning the inference of consciousness of guilt are those statements made in relation to the circumstances under which the fractured skull was sustained. Do you follow what I am putting to you? All of the other statements that have been made by the accused man, or conduct engaged in by the accused man, which you regard as lies or attempts to deliberately mislead or conceal, can be used by you when considering the possible credibility of the version provided by him to the police, and when considering the process of inferential reasoning in a circumstantial evidence case, but they cannot be used to support this particular basis of analysis. Now, I am not certain that that is clear. Do you actually understand the distinction that I am trying to draw there? If you have any queries, please let me know, because it is my task to ensure that you do understand. You can use all those other statements, and so forth, in the process of inferential reasoning, in the context of a circumstantial evidence case, and you can use statements that you regard as lies when you come to consider whether or not you can discount beyond reasonable doubt the version provided by the accused to the police. But you cannot use any other statements or conduct that you find false, deliberately false or misleading, as evidence of consciousness of guilt in the fashion that I have just described it to you, that is, I should not have said `in the fashion', I should have said you cannot use it as evidence of consciousness of guilt. Do you understand what I am saying? All right."

At this point the lunch-break was taken and immediately afterwards the trial judge dealt with the post-offence conduct as circumstantial evidence. His Honour warned the jury that they must never forget that "the circumstances relied upon by the Crown for an inference of guilt must exclude any reasonable hypothesis or explanation consistent with the innocence of the accused man". The judge then turned to the arguments of counsel and put the prosecution case as to the post-offence conduct in the following way -

"In broad terms, the prosecution has contended that an overwhelming case of the guilt of the accused man of the crime of murder has been established on the basis of a combination of pieces of evidence and all of the circumstances. You will recall the arguments which have been advanced by Mr Elston before you on this basis. It is, he submitted, clear that the deceased met her death some time on the Monday, almost certainly before the accused man contacted her brother and then her father. The accused man, from that time onward, engaged in a calculated attempt, it is said, to hide and divert attention from her death and his involvement in it. You do not know, it is argued, precisely the circumstances under which Miss Psaila was killed. What you do know, it is said, is that on that day, and as a consequence of the actions of the accused man, she did die, and she sustained a fracture of the skull about which the accused man told lies. Whether that fracture was sustained before or after her death, what it indicates, it is said, is a sensitivity on his part with respect to the true situation, at minimum. He was not acting thereafter, it is asserted, in a form of panic of the kind alleged by him in his interview with the police but, rather, undertook a number of steps over a matter of some days to work out how to deal with the situation with which he was confronted. It is said that he took advantage of his contacts with other people who he used in order to secure the necessary items, including moneys that he wanted to make good his escape. You are entitled when you consider the totality of the circumstances to have regard to his endeavours to conceal the body of the deceased, and you are entitled to have regard to his interview as a pack of lies, it is said. Putting all those matters together, it is clear beyond reasonable doubt, submitted the prosecutor, not only that the accused man killed Dianne Psaila, but that he committed the crime of murder. It is submitted that you can be satisfied beyond reasonable doubt the killing was not only unlawful but was accompanied by the necessary intention to create the crime of murder."

Ground 4. The applicant's argument on consciousness of guilt

110. Mr Tehan for the applicant submitted in this Court that the judge had erred in confining his directions concerning consciousness of guilt to the applicant's statements concerning the tapping of the deceased's skull. He argued that the judge should have given directions upon consciousness of guilt which encapsulated all of the post-offence conduct and behaviour of the applicant on the day of the death and in the days which followed. He argued that the applicant's lies in the record of interview concerning these events should have been dealt with in the same way.

113. That the applicant had engaged in all the behaviour after death and lied about it was conceded. Some of these concessions had indeed been made by the applicant himself in his interviews with the police officers. There was no doubt, Mr Tehan conceded, that the alleged significant lie concerning the tapping of the skull was proven to be a lie because the skull was shown to have been fractured. Lies as to conduct had been conceded to be such by the applicant in his interviews. What remained was the conduct itself and what the jury would make of it. Mr Tehan submitted that by failing to give the jury a consciousness of guilt direction upon his conduct, the applicant was denied a direction to which he was entitled. In particular he was denied those parts of an Edwards[12] direction which concentrate upon (i) the behaviour stemming from a realisation of his guilt of the crime with which he is charged, as distinct from a realisation that he has caused the death of the deceased; and (ii) there being possible explanations, such as panic or a desire to escape an unjust accusation, for such behaviour. In so far as there had been consideration of these matters by the jury in this case, that only arose by virtue of the judge's summary of counsel's arguments. The argument continued that judicial weight should have been given to these matters and that could only occur if an Edwards direction had related to the post-offence conduct. Reliance was placed on the decision in Nguyen[13], to which I shall turn later.

The prosecution argument as to consciousness of guilt

117. The Director of Public Prosecutions in this Court first pointed to the great experience in criminal proceedings of both the trial judge and defence counsel. He referred to the procedure which had been followed in the course of the trial and which I have set out above, emphasising that counsel for the defence had not challenged the analysis undertaken by the prosecutor and the judge when the question of consciousness of guilt was discussed both at the outset of the trial and before addresses and the charge to the jury. He submitted that a trial judge is required in giving an Edwards direction to identify the lies (or conduct) from which consciousness of guilt can be inferred, i.e. a finding which of itself would support a finding of guilt. He argued that this is precisely what had been done in the present case. The trial judge had identified the lie surrounding the fracture of the deceased's skull and given a detailed and completely appropriate Edwards direction with respect to it. Following this passage of the charge a very careful direction had been given, he submitted, as to the balance of the post-offence conduct in relation to which the jury were told that they could not use the lies or conduct to show consciousness of guilt but that they could be used otherwise. He argued that if an Edwards direction had been given in relation to other lies or conduct, the applicant would now have been complaining on appeal that matters were left as consciousness of guilt which did not in fact constitute consciousness of guilt. He submitted that the charge in this case was actually favourable to the applicant. Not unnaturally he referred to the fact that no exception had been taken by senior counsel for the applicant at the end of the charge, and, indeed, immediately after the trial judge concluded his remarks to the jury about lies, there had been a short break where his Honour gave counsel an opportunity to take exception. No exception was taken.

120. The director submitted that the use of the post-offence conduct as circumstantial evidence was directed to the following issue in the trial. If the applicant's answers in his interviews with police were accepted, it provided a defence either of accident, or possibly self-defence, or possibly of lack of intention to kill or injure the deceased. It therefore became important to discredit the applicant's answers in his record of interview. The argument ran that what the prosecutor had done at the trial and in his address was to use the analysis of the applicant's post-offence conduct as demonstrating that what had been said by him in the record of interview did not lay a foundation for a proper analysis of what happened that day. His exculpatory answers were not consistent with the objective facts. The post-offence conduct was therefore used to show the fictitiousness of the applicant's version of the killing in his record of interview. Accordingly, so the argument ran, the general circumstantial case went to establish the intent of the applicant, the mind of the accused. The post-offence conduct was being used to say that his version of events was "simply nonsense", all a pack of lies, and that he had no credibility.

123. It is necessary now to deal briefly with two cases dealing with consciousness of guilt which were decided after the trial was completed, R. v. Nguyen[14] and Dhanhoa v. The Queen[15].

127. Nguyen was charged with the murder of his stepson, it being alleged that he had killed him with a shot fired deliberately from a double-barrelled shotgun at close range in the kitchen of Nguyen's home. The principal issue in the trial was whether the prosecution had proved that Nguyen had deliberately discharged the firearm with intent to kill or do really serious injury to the deceased. Nguyen in his evidence claimed that the killing was unintentional and that the gun had discharged "accidentally" while he was cleaning it. There was no eyewitness to the shooting and the principal evidence of intent against Nguyen was his post-offence behaviour. Nguyen had almost immediately left the house after the shooting and disposed of the firearm, first by hiding it in bushes nearby and later by disposing of it in the waters off Altona Beach. The firearm was never found. Thereafter Nguyen pretended to the police that some unknown intruder had been responsible for the shooting. He said that he had been sitting in the lounge room with his wife. He also encouraged his wife and stepdaughter to make similar allegations to the police. The police had not been able to locate any gun-shot residue on Nguyen's person or clothing, a fact which was surprising if Nguyen had had his hands on the firing mechanism of the gun when it discharged. The fact that Nguyen had lied to the police became apparent when, two days after the shooting, his wife went to the police and told them that he had been responsible for the discharge of the firearm. The prosecution relied heavily on Nguyen's post-offence conduct in submitting to the jury that he had had murderous intent. Winneke, P.[16], after citing passages from the prosecutor's address to the jury, said that the prosecutor had invited the jury to conclude that the post-shooting conduct of the applicant was itself evidence of his guilt of murder, that it was evidence inconsistent with his claim of accident. The trial judge directed the jury that they could only use the applicant's lies in assessing the credibility of his evidence. Winneke, P. said of this[17] -

"Notwithstanding the trial judge's general directions to the jury that they could only use such lies as they found the applicant had told to police in assessing the credibility of his evidence, and that they could not jump from lies so found to guilt, it seems to me that there was a real risk in this case that the jury would use the applicant's immediate post-offence conduct as probative of his guilt. It was the conduct of the applicant, immediately after the shooting, in concealing the weapon and thereafter pretending to police that an intruder had shot the deceased, which, because it was capable of being used to prove intent, put the applicant at risk in the absence of proper directions. It was this combination of the concealment and pretence which gave the evidence its probative value. It did not lose its probative value, as the judge appears to have thought, simply because the applicant thereafter conceded that he was holding the gun when it discharged. If anything, that only accentuated the materiality of the evidence because the issues were narrowed to `voluntariness' and `intent'. These issues could only be determined by the drawing of inferences and the jury were invited to draw those inferences in part by relying upon the post-offence behaviour of the applicant. Post-offence conduct, including lies, only becomes probative because it stems from a consciousness of guilt. The strength of its probative value, however, will depend upon its nature and the use which is sought to be made of it. It will rarely be the case that its strength is such that it can prove guilt directly. Generally, as here, it will form part of the body of circumstantial evidence from which the jury is asked to infer the guilt of the accused. Where that is the case, it has been said that the employment of the term `consciousness of guilt' is misleading because it suggests a conclusion about the conduct which undermines the presumption of innocence. However, where the conduct is being used, and is capable of being used, to prove guilt, the trial judge must, in my view, be astute to the clear possibility that the jury will so use it, and to give such directions as are needed to ensure that it is not misused."

Later in his reasons, Winneke, P. continued[18] -

"The probative strength of post-offence conduct, such as concealment of weapons or flight, with or without `covering lies', will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused's mind at the relevant time, the conduct will have to be assessed in the light of the probabilities. But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, as I think they required in this case, a careful direction from the trial judge of the type referred to in Edwards. Such a direction should have involved a specific identification by the trial judge of the conduct being relied upon by the Crown to prove murderous intent; a direction that they could only use such conduct as proof of guilt if they were satisfied that there was no other explanation, consistent with innocence for it; and that the accused only engaged in the conduct because he knew the revelation of the truth would implicate him in the offence charged. Properly directed, the jury should also have been told that conduct such as that relied upon by the Crown could stem from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt."

The Court of Appeal concluded that an Edwards direction should have been given, notwithstanding that the course taken by the trial judge was accepted by defence counsel at the trial, and that there had been a miscarriage of justice in the absence of such a direction.

135. The appellant was convicted of robbery in company with wounding and kidnapping. The Court of Criminal Appeal of New South Wales had held that a direction in relation to lies was not required in the circumstances of the case, no such direction having been sought at trial. In the High Court, Gleeson, C.J. and Hayne, J. said[19] -

"It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff[20], every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case."

McHugh and Gummow, JJ. said that the jury would have been entitled to conclude that Dhanhoa had lied because he knew that the victim had been assaulted, robbed and detained. The Crown had, however, made no attempt to run a case of consciousness of guilt. Their Honours continued[21] -

"It is possible, therefore, that the jury may have reasoned that the accused was guilty because he had lied to the police. It is not necessary for a trial judge to give a direction concerning lies as evidence of guilt whenever a prosecutor suggests directly or indirectly that an accused's out-of-court statement is a lie. But in this case it would have been better if the trial judge, having given the direction that he did, had instructed the jury as to how they were to use any lie told by the accused. Given the way that the Crown conducted its case, it would have been better if the trial judge had directed the jury that the accused's lies, if they found he had lied, only affected his credibility. However, it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the judge may have reasoned that the accused was guilty because he had lied to the police. To succeed in the appeal, Dhanhoa must establish that it is a reasonable possibility that the failure to direct the jury `may have affected the verdict'. We do not think that he has done so."

143. The conduct (apart from lies) of the applicant in the present case which the prosecutor at the outset submitted was capable of demonstrating consciousness of guilt included flight, an assault on a policeman, the laying of a complex false trail, the concealment of the body of the deceased and the preparation of a grave in which the body was to be placed, in addition to a large number of lies allegedly told by him. Flight, escape, resistance and concealment are dealt with in a paragraph of Wigmore on Evidence[22] as follows -

"Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. `The wicked flee, even when no man pursueth; but the righteous are bold as a lion.' In our primitive system of law, the accused who fled, whether innocent or guilty, suffered forfeiture and escheat; though this was rather a mode of deterring him from refusing to appear for judgment than an evidential rule. It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself: ...".

147. It has been recognised, however, particularly in relation to flight, that evidence of post-offence conduct may be highly ambiguous and susceptible to error. As was pointed out in the recent decision of this Court in R. v. Burrows[23] a careful distinction was drawn in two cases decided by the Canadian Supreme Court, R. v. Arcangioli[24] and R. v. White[25], between situations where the conduct in question has no probative value, and others where the evidence of post-offence conduct is proper to be put to the jury, but the jury must be "properly instructed" to ensure that the evidence is not misused. This distinction was made particularly where the conduct in question is flight. These cases recognise that when post-offence conduct is introduced to support an inference of consciousness of guilt, it is susceptible to jury error. As the Court observed in White[26] -

"The danger exists that a jury may fail to take account of alternative explanations for the accused's behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act."

But as the Court later observed in White, the result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute. The Court continued[27] -

"It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused's flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence."

153. Furthermore the act of concealment or destruction of a body has in many cases been said to amount to consciousness of guilt of murder; as Cardozo, J. said in People v. Balboa[28] -

"The man who secretes a body and lies about it may be found, in most cases, to be concealing his own crime, and therefore to be the murderer. That is so because personal guilt, unless the circumstances point to some other connection, is the reasonable inference."

A number of cases where the victim's body had been concealed or had disappeared are collected in R. v. Rice[29]. As Brooking, J.A. said in Rice[30] -

"Any reasonable person must have realised that, by concealing her body and her death as he did, and telling the lies which he told, he ran a great risk that, if the body was found, he would be charged with murder. Why should a man take such a risk if the explanation of the death was an innocent one?"

Conclusions on the issue of consciousness of guilt

161. The argument for rejecting this ground of the appeal may, I think, best be put in the following way. The judge gave the jury a full and proper Edwards direction upon the lie which was relied upon by the prosecution as consciousness of guilt. The applicant told many lies, and in directing the jury that only one lie was capable of constituting consciousness of guilt, the judge's direction was most favourable to the applicant. The judge however went further. He directed the jury that any other statements or conduct of the applicant which the jury found deliberately false or misleading could not be used by them as evidence of consciousness of guilt. It followed that there was no requirement to give an Edwards direction as to the applicant's post-offence conduct because the jury had been directed that that conduct could not be used as consciousness of guilt. The applicant's post-offence conduct was left before the jury as circumstantial evidence, and the judge gave the jury full and proper directions as to how they might use such evidence. As to this, the judge clearly directed the jury that they could only act on such conduct adversely to the applicant if there was no other reasonable hypothesis or explanation open. The prosecution used evidence of this conduct for the purpose of destroying the version given by the applicant in his records of interview with the police. Accordingly, the jury had its mind directed to all relevant considerations. No exception was taken by the very experienced senior counsel appearing for the applicant. In consequence no miscarriage of justice arose.

164. I am unable to accept this argument. The conduct of the applicant after the death of the deceased included, apart from lies, careful preparation for flight, a very detailed scheme to lay a false trail, with the intention also of misleading the victim's family to believe she had decamped, taking with her a substantial amount of her father's money, and the making of preparations to dig a grave for the body. The purchase of hydrochloric acid and lime which were found beside the open grave can only have been intended to ensure that the body, and thus the evidence of the injury to the head, was destroyed. All of this taken together, in my view, amounted to a continuing course of activity which the jury would have been entitled to regard as evidencing in the strongest possible terms the applicant's consciousness of his guilt of murder. The ruling of the trial judge at the outset prevented the prosecutor putting to the jury any of the applicant's post-offence conduct or lies other than the "significant lie". This, in my very respectful view, confined the prosecution case on this issue quite unduly. In Camilleri[32] Phillips, C.J. and Brooking, J.A. criticised like directions from a trial judge which similarly confined the prosecution in that case from relying on lies in Camilleri's record of interview, observing[33] that -

"After the decision in Edwards and the numerous attacks on verdicts in this State on the ground that the trial had miscarried because of what had been said or not said to the jury about consciousness of guilt, there arose a marked reluctance on the part of Crown prosecutors to rely, and trial judge's to permit reliance, on consciousness of guilt. Attempts have been made in this Court in recent times to correct what appeared to it to be an undue reluctance."

168. With great respect to the very experienced trial judge, I can see no reason why the prosecution should not have been permitted to rely on the applicant's post-offence conduct and lies as consciousness of guilt in the way proposed at the outset of the trial by the prosecutor.[34] But, relevantly to the appellant's argument, the consequence of the judge so confining the prosecution case was that the jury were given a full and proper Edwards direction only in respect of the "significant lie", and were thoroughly warned that this lie may have been told for a variety of other reasons such as panic. The jury was, however, given no such warning when they came to consider the remainder of the applicant's post-offence conduct.

171. The judge did indeed tell the jury that they could not use the applicant's other statements "or conduct engaged in by the accused man which you regard as lies or attempts to deliberately mislead or conceal ... to support this particular basis of analysis". The director understandably argues that the jury should be presumed to have complied with this direction and, if they did so, could not have used any other of the accused's lies or post-offence conduct as evidence of his consciousness of guilt.

174. A jury will indeed usually be expected to follow faithfully the directions of a trial judge. But, with respect, it would in the present case have been no easy matter. Virtually all the Crown case was based on the accused's post-offence lies and conduct. It seems to me that his behaviour is likely to have been viewed by the jury as shouting his guilt to the four winds. The judge did not give any further definition to the words that were used in confining his directions to the jury on this issue to the significant lie, and the use of the indefinite word "conduct" twice in the passage quoted at [31] above may well have left the jury in some uncertainty as to which activities of the accused they were expressly obliged not to use in considering consciousness of guilt. But the problem was then, I think, again with respect, compounded by the fact that the judge immediately (after the luncheon break) moved to direct the jury on circumstantial evidence and to what the prosecution said was the "calculated attempt to hide and divert attention from her death and his involvement in it". The jury had, therefore, been told just before lunch that they were not entitled to use the accused's "conduct" as evidence of consciousness of guilt, but, immediately afterwards, that it was entitled to take all of this evidence into account as part of the Crown's circumstantial case.

177. The director's argument in this Court was that the circumstantial case was merely to be used to demolish the false version given by the accused in his interviews with the police, and not as consciousness of guilt. But this is not, I think, how the matter was put to the jury either by the prosecutor or the judge, and I very much doubt that the jury would in any case have understood the difference. In my view, although the prosecutor did not actually use the words "consciousness of guilt", both his opening and closing addresses would have left the jury in no doubt that the prosecution was relying on the accused's post-offence conduct and lies to show that his awareness of his guilt directed his actions.

180. It follows, I think, that a full Edwards direction should have been given in relation to the applicant's alleged lies and his post-offence conduct generally. The absence of such a direction meant that the applicant was, as was contended on his behalf in this Court, denied the protection he would have been given by a warning that his behaviour may not have stemmed from a realisation of his guilt of murder, as distinct from a realisation that he had caused the victim's death and that there were possible explanations such as panic or a desire to escape an unjust accusation for his highly bizarre behaviour. The case is, in my view, very close in these respects to what occurred during Nguyen's trial. The conduct here, I have concluded, would inevitably have been used by the jury for the purpose of drawing an inference as to the state of the accused's mind at the relevant time. Since it was capable of being misused by the jury, the interests of a fair trial required a careful Edwards direction from the trial judge as to all the conduct and lies originally sought to be relied on by the prosecutor in this way.[35] I note that in the passage previously cited from the judgment of Gleeson, C.J. and Hayne, J. in Dhanhoa[36] their Honours appear to accept the necessity for the giving of such a direction if "the judge apprehends that there is a real danger that the jury may apply such a process of reasoning". That the jury here would have done so seems to me to be certain.

183. Accordingly, notwithstanding the absence of any request by the applicant's counsel for such a direction, or any exception to the charge, it seems to me that ground 4 must succeed.

187. It was submitted by Mr Tehan under this ground that the judge erred in failing to direct the jury upon the defence of accident, and that the facts and circumstances demanded that the defence be left to the jury. The argument was that there was no apparent motive for the killing, there was no evidence of planning or premeditation, and the victim had gone to the applicant's house for a legitimate reason. During the applicant's record of interview, he had at one stage said that the death of the victim was an accident and that her head hit the corner of the lounge when she fell. According to Mr Tehan the applicant had, on a number of occasions, given answers which were arguably consistent with accident. Furthermore, Dr Lynch had said in evidence that a "glancing" blow to the neck would have been sufficient to cause the heart to stop beating and cause death and that the fracture to the skull was consistent with blunt trauma caused by hitting the head on a wooden lounge rest. The argument continued that in both interviews the applicant said he did not intend to kill the deceased. The issue of accident was raised in the addresses of counsel both by the Crown and the defence. Accordingly Mr Tehan submitted that it was enough if the evidence raised the possibility of death by accident. It followed upon review of all the evidence that the judge should have put the defence of accident to the jury.

190. In my view there is nothing in this point. The course of the trial showed that the applicant could not have been convicted of murder unless the jury were satisfied beyond reasonable doubt that the applicant killed the deceased by a conscious, voluntary, deliberate and unlawful act intending to cause death or really serious injury. Since it was never suggested that the applicant did not deliberately "push" the deceased, the question of accident did not really arise. The director's argument was that all the matters raised on behalf of the applicant under this ground were satisfactorily subsumed in the direction on specific intent. The clear issues joined by the parties during the trial were whether the applicant acted in self-defence and the question of his intent. Defence counsel had expressly indicated at the outset that the issues in the trial were self-defence and intention. The applicant's account that he pushed the deceased in response to her assaulting him supported the view that the actions of the applicant were the result of a deliberate, conscious and voluntary act by him. There was no substantial basis for doubting this. Nor was there, in the way self-defence was put on behalf of the applicant, any claim as to lack of voluntariness.

193. No request was made by defence counsel to the trial judge to direct the jury as to the defence of accident, nor was any exception taken to the charge on this point. In my view ground 2 should be rejected.

197. This ground claims that the judge erred in failing to direct the jury upon the fact that the applicant had no prior convictions. The argument under this ground, which I think was not vigorously pressed by Mr Tehan, was that the fact that the applicant had no prior convictions had been led from a police officer, and tended to suggest that he was a person of good character. Mr Tehan accepted that such a direction is not mandatory and that the judge had a discretion as to whether to mention it. Counsel for the applicant did not seek a character direction. It was nonetheless submitted that because the applicant had engaged in reprehensible and criminal conduct in the week of the death, and that this was an important feature of the trial, his credibility had been greatly impugned and he himself had admitted to many lies. Accordingly it was argued that the judge should have exercised his discretion to give a good character direction acknowledging that the accused had committed some criminal offences, but saying that the fact that he was a person of good character meant that the jury might infer he was a person less likely to murder the deceased.

200. In my view there is nothing in this ground also. The judge had in fact given a direction to the jury as to the use they could make of the fact that the applicant had no prior convictions, and no exception was taken to the judge's charge in this respect. Any such direction may well in any event have served only to highlight the admittedly discreditable conduct engaged in by the applicant. This ground also fails.

203. Ground 1 of the application claimed that the verdict was unsafe and unsatisfactory. Having regard to the view I have taken on ground 4, it is not

necessary to pursue this ground. There was, however, plainly a strong circumstantial case against the applicant.

207. I am, accordingly, of the view that the appeal must succeed on ground 4 and that the applicant should be retried.

212. I agree with Charles, J.A. and with the observations of Ormiston, J.A.

[1] [1993] HCA 63; (1993) 178 C.L.R. 193.

[2] [2003] H.C.A. 40; 77 A.L.J.R. 1433.

[3] (2000) 200 C.L.R. 234.

[4] See, e.g., per Winneke, P. in Nguyen [2001] VSCA 1; (2001) 118 A.Crim.R. 479 at 489 para.[20].

[5] [1998] HCA 75; (1998) 197 C.L.R. 316.

[6] [2001] VSCA 14; (2001) 119 A.Crim.R. 106.

[7] See R. v. Franklin [2001] VSCA 79; [2001] 3 V.R. 9 at 49-51 paras.[119]-[123].

[8] Cf. Edwards at 211 and Zoneff at 263.

[9] (1989) 42 A.Crim.R. 419 especially at 423-425.

[11] [1993] HCA 63; (1993) 178 C.L.R. 193.

[12] Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193.

[13] [2001] VSCA 1; (2001) 118 A.Crim.R. 479.

[14] [2001] VSCA 1; [2001] 118 A.Crim.R. 479.

[15] [2003] HCA 40; (2003) 77 A.L.J.R. 1433.

[20] (2000) 200 C.L.R. 234 at 244.

[22] Evidence in Trials at Common Law, Chadbourn Revision, Vol. 2, (1979) par.276(4).

[23] [2003] VSCA 130 at [26].

[25] (1998) 125 C.C.C. (3rd) 385 at 398-9.

[28] 218 N.Y. 283; 112 N.E. 1041 [1916].

[29] [1996] 2 V.R. 406 at 412-415. Brooking, J.A. was there dealing with a charge of manslaughter, having taken the view at 420 that the charge of murder had been incorrectly withdrawn by the trial judge from the jury.

[31] 270 P. 2nd 160 (1954) at 173.

[32] [2001] VSCA 14; (2001) 119 A.Crim.R. 106.

[34] As was said in White 125 C.C.C. (3d) at 402-403, the extent of the accused's flight and concealment was out of all proportion to the level of culpability admitted.

[35] Nguyen. [118] A.Crim.R. at 489 per Winneke, P.

[36] [2003] H.C.A. 40 at [34].