R v Ciantar; DPP v Ciantar [2006] VSCA 263

Criminal law - Evidence - Flight - Consciousness of guilt - Whether evidence of failure to stop at scene of accident causing death capable of being probative with respect to particular offence of culpable driving as opposed merely to involvement in unlawful activity - Directions to jury - R. v. Woolley (1989) 42 A. Crim. R. 418, considered; R. v. Angiocoli (1994) 87 C.C.C. (3d) 289 and R. v. Peavoy (1997) 117 C.C.C. (3d) 226, not followed; R. v. Heyes [2006] VSCA 86; (2006) 12 V.R. 401, doubted.

Criminal Law - Evidence - Lies - Consciousness of guilt - Directions to jury - Failure to give Edwards direction - Whether productive of miscarriage of justice.

Criminal Law - Appeal - Proviso - Whether proviso able to be applied where miscarriage of justice caused by failure to give Edwards direction - R. v. Weiss [2005] HCA 81; (2005) 80 A.L.J.R. 444, applied - Crimes Act 1958, s.568(1).

Criminal Law - Procedure - Mistake by jury in delivering verdict - Correction of mistake before jury discharged.

Criminal Law - Sentencing - Crown appeal - Culpable driving (one count), failing to stop after motor accident (one count) and failing to render assistance (one count) - Total effective sentence of four years and one month's imprisonment with non-parole period of 19 months - Head sentence and non-parole period remarkably lenient but not attracting appellate intervention.

1 On 18 October 2005 the applicant was arraigned before the County Court at Melbourne on one count of culpable driving, one count of failing to stop after a motor accident and one count of failing to render assistance. He pleaded not guilty to the count of culpable driving although guilty to the other two offences. After a trial which lasted 10 days, he was convicted of the count of culpable driving and, following a plea in mitigation of penalty, the judge sentenced him on that count to a term of imprisonment of four years and on each of the other counts to a term of imprisonment of three months, with one month of the sentence imposed on count 2 to be served cumulatively on the sentence imposed on count 1. The total effective sentence was therefore four years and one month imprisonment, of which the judge ordered that the applicant serve not less than 19 months before being eligible for parole. The applicant now appeals against his conviction of the count of culpable driving and the Director of Public Prosecutions appeals against the sentence.

Ground 1: Preliminary Breath Test

2 The collision that caused the death of the deceased occurred on the night of Saturday 11 October 2003. Evidence given at the trial established that the applicant had earlier that day gone with friends to the races at the Caulfield Race Course and while at the races had drunk beer and champagne. After leaving after the last race, at between 5.00 and 6.00 p.m., he returned home and then later in the evening went with friends to dinner at a restaurant in St Kilda. He there drank wine with the meal and also some shots of Baileys and Tia Maria. He walked home from the restaurant but later went out in the car to drive some of his friends to their homes. On the return trip to his own home, at approximately 11.00 p.m., he struck a pedestrian in Inkerman Street St Kilda near to the intersection with Chapel Street, causing the victim mortal injuries. Instead of stopping and rendering assistance, however, he drove immediately to his father's home nearby and told him what he had done. His father telephoned police almost immediately and later went with him to the police station.

3 Approximately 20 minutes after the applicant's father first spoke to police by telephone, he and the applicant arrived at the police station and a few moments later, at approximately 11.38 p.m., the applicant was subjected to a preliminary breath test using a Lion Alcolmeter preliminary breath test device. It showed that the appellant had a blood alcohol concentration of 0.159%. When asked by police when he had last had anything to drink, he said that he had consumed approximately one third of a bottle of Black Douglas scotch whisky at his father's home, while his father was speaking by telephone to the police. After a preliminary interview, at 12.29 a.m. the applicant was subjected to a breath test using a prescribed breath analysing instrument, which showed that his blood alcohol concentration at that time was 0.136%.

4 Subsequent investigations showed that at the time of collision, the applicant's car was travelling at between 55 kph and 68 kph and that the victim had a blood alcohol concentration of 0.260%. The conditions were dry and well lit and the car was in order.

5 Over objection at the trial, the Crown tendered evidence of both the preliminary breath test and the subsequent breath test and called expert testimony from Dr Morris Odell as to the conclusions which could be drawn from the results. Dr Odell opined that, if the applicant had in truth drunk one third of a bottle of whisky after the accident as he claimed, it would have increased his blood alcohol concentration by between 0.145 and 0.218%, and thus the fact that his blood alcohol concentration declined from 0.159% at 11.38 p.m. to 0.136% at 12.29 a.m. meant that he had not drunk whisky as he claimed. Assuming, on that basis that the alcohol found to be in the applicant's blood at 12.29 a.m. was wholly due to alcohol consumed before the accident, Dr Odell calculated that the applicant's blood alcohol concentration at the time of the accident was between 0.128% and 0.166%.

6 Under ground 1 of the appeal against conviction, the applicant submits that the judge erred in admitting the evidence of the preliminary breath test, on the basis that the results of a preliminary breath test are not evidence of anything other than that the applicant had some alcohol in his blood at the time of the test. In the applicant's submission, the effect of ss.53, 55 and 58 of the Road Safety Act 1986 is that evidence of blood alcohol concentration is only admissible if obtained by analysis by a prescribed breath analysing instrument, and even then only subject to strict statutory controls, and that, by implication, those provisions exclude as inadmissible evidence of blood alcohol concentration obtained by means of a preliminary breath testing device.

7 We do not accept that submission. No doubt the results of the preliminary breath test were not admissible as such under s.58 of the Road Safety Act 1986. But the provisions of that section are facultative. As was in the end conceded, they do not purport to exclude nor do they have the effect of rendering inadmissible proof aliunde of blood alcohol concentration. And like any other bodily condition, blood alcohol concentration may be proved by any recognised and reliable scientific technique.

8 It was submitted on behalf of the applicant that a preliminary breath test device is not within that class of notorious scientific instruments of which the accuracy is presumed at common law and, consequently, that in order for evidence of the preliminary breath test results to be admissible at common law, it was necessary for the Crown to establish the scientific character and operation of the preliminary breath test device. It was contended that it failed to do so.

9 We do not accept that contention either. It was held in Porter v. Kolodzeij[1] that the common law presumption of accuracy of scientific instruments does not apply to a breath-analysis instrument. But even assuming that Porter v. Kolodzeij is still good law, a court may admit the results of a test conducted with a scientific instrument on the basis of evidence from a witness expert in its use. It is sufficient if it is established that it is a scientifically accepted instrument for its avowed purpose and that the particular instrument was handled properly and read accurately.[2] As White, J. put it in Mehesz v. Redman (No. 2):[3]

"If the instrument is not a notorious scientific instrument, its accuracy can be established by evidence: (a) that the instrument is within a class of instrument generally accepted by experts as accurate for its particular purpose; (b) that the instrument, if handled properly, does produce accurate results: ((a) and (b) must be established by expert testimony, that is, by experts with sufficient knowledge of that kind of instrument; and upon proof of (a) and (b), a latent presumption of accuracy arises which allows the court to infer accuracy on the particular occasion if it is proved) - (c) that the particular instrument was handled properly and read accurately by the operator on the particular occasion; ((c) can be established by a trained competent person familiar with the operation of the instrument, not necessarily the type of expert who proves (a) and (b)).

Where the actual accuracy of the measurement can be inferred from all of the proved circumstances, it is not necessary to rely upon the presumption arising from (a) and (b), proof of which is superfluous."

10 In our opinion the evidence adduced in this case met those tests. Tibor Ducza, a forensic officer with the Technical Services Laboratory of the Traffic Alcohol Section of the Victoria Police, gave evidence that he had undertaken training in the service, maintenance and calibration of the Lion Alcolmeters (known as PBT's) which are in service with the Victoria Police, and also in the service, calibration and maintenance of the Draeger Alcotest 7110 which is the prescribed breath analysing instrument used by the Victoria Police, and that he was authorised by Lion Laboratories of the United Kingdom and Draeger Australia to undertake service and maintenance work on their instruments on their behalf. He had previously been employed by Draeger Australia in the manufacture of breath analysing instruments for Victoria and other states and territories. He deposed that based upon his experience in the Victoria Police, he had found the Lion Alcolmeter very reliable as a reflection of blood alcohol levels. Following the accident, he had conducted a test on the PBT used to conduct the preliminary breath test on the applicant, using standard calibration techniques which he described, and he found the machine to be accurate. He was also able to say from the computer readout from the machine that it had not been used after the test conducted on the applicant, and he deposed to the electronic security device with which each such machine is fitted to prevent tampering with its operation. In cross-examination he added that he had previously carried out a comparison of the readings which one obtains using a PBT and the readings produced by a Draeger breath analysing instrument, and found that the latter are set at a level of 10% lower, in effect as an inbuilt safety margin, but otherwise they are comparable.

11 Dr Morris Odell, who is a forensic physician at the Victorian Institute of Forensic Medicine, Southbank, was called as an expert in the field of alcohol and drink driving. He had studied widely and published many papers in the area and taught in the subject in the post-graduate programme in the Monash University Medical School. In addition to the opinion evidence to which we have already referred, Dr Odell deposed that breath testing has been used since the introduction of the first breathalysers in the 1950's as an accepted means of establishing blood alcohol concentration and that both the Lion Alcolmeter and the Draeger breath analysing instrument are now accepted as reliable instruments for the purposes of measuring breath alcohol levels and that breath alcohol levels are an accurate reflection of blood alcohol concentration. He accepted in cross-examination that, in this state, PBT's are generally used as preliminary screening devices, as it were to give a "yes" or "no" answer to the question of whether there is any alcohol present in a subject's blood, but he explained that that was largely historical. He said that, originally, preliminary breath testing devices simply used a change in the colour of crystals to detect the presence of breath alcohol, but that the machines are now so developed that they are capable of generating accurate scientific readings of breath alcohol.

12 Constable Walter Larkin of the Regional Licensing Unit gave evidence that he had been trained in the use of the PBT and was experienced in its use, and that he had conducted the PBT test on the applicant on the night of 11 October 2003.

13 In our view, Dr Odell's testimony established that the PBT is within a class of instrument generally accepted by experts as accurate for its particular purpose. Mr Ducza's testimony established that the instrument, if handled properly, does produce accurate results and, moreover, that when tested subsequently it was producing accurate results. And Constable Larkin's testimony established that the PBT was handled properly and read accurately by the operator on the particular occasion it was used to test the applicant.

14 The applicant criticises Dr Odell's opinion concerning the general acceptance of PBT's in the relevant area of the scientific community, as in effect being based upon Dr Odell's reading of the literature. We do not regard that as a valid criticism. The law allows an expert to express an opinion based upon his reading and research and the body of his acquired knowledge.[4] The applicant also criticised Mr Ducza's evidence on the basis that he was not a scientist but a technician. But we do not think that that is a legitimate basis of criticism either. Mr Ducza was highly skilled and experienced in the service and testing of the machines and well able to say on the basis of his training and experience that the PBT is generally very accurate as a test of blood alcohol.[5]

15 The applicant further complains that, while at one point in the trial the judge contemplated that he would give the jury specific directions that they were not to confuse the PBT with the Draeger breath analysing instrument, and that it was open to them to accept or reject as they saw fit the evidence which had been given as to the accuracy of the PBT, in the end his Honour did not give any directions of that kind. Thus in the applicant's submission, there remained a real risk that the jury would confuse the PBT with the Draeger device and fail to comprehend that the reliability of the PBT results was dependent on the reliability of the evidence of Dr Odell and Mr Ducza.

16 There is some force in that submission. With respect, we think that it would have been preferable if the judge had given a detailed direction of the kind which he appears to have contemplated giving. His Honour's decision not to do so created a risk that might have been avoided. But in the events which occurred, the risk was effectively countered. The judge directed the jury that they were free to accept or reject the expert evidence given by Dr Odell and Mr Ducza and that it was for them to give such weight to the opinions of those witnesses as they thought fit. His Honour also summarised at some length the submissions made by defence counsel as to the inherent limitations of the evidence about the PBT's. Looking at the charge as a whole, we consider that the jury would have been left in no doubt as to the distinction between the Draeger and the PBT machines and the arguments each way, and, significantly in a matter of this kind, no exception was taken.

17 In our view, Ground 1 fails.

Ground 2: Directions on the element of "under the influence"

18 In directing the jury on the elements of the offence of culpable driving,[6] the judge said this:

"In order to prove this form of culpable driving, the Crown must prove the following things. One, that the accused was driving the car. This is not an issue. Two, that at the relevant time, whilst driving the car, the accused was under the influence of alcohol. This means simply that the alcohol was having some effect upon him. This is very much in issue. Three, that at the relevant time, the extent to which the accused was affected by the alcohol was such to render him incapable of proper control of the motor car.

What is proper control of a motor car is a matter for you the jury to say. What the Crown must prove to you however is not merely that the accused did not maintain proper control, but that he was incapable of doing so, because of the effect upon him of the alcohol. Four, that the death of the deceased was caused by the driving of a motor car by the accused.

The Crown must prove each of these elements: the accused's driving of a car; the accused being influenced by alcohol and the extent of that influence; a causal connection between the driving of the motor car and the death of the deceased beyond a reasonable doubt....

...

...the Crown...has to prove that the accused was under the influence of alcohol, to such an extent as to be incapable of having proper control of the motor car. That the accused was driving the motor car and that the driving by him of the motor car was a cause of the death of the deceased.

[The Crown] does not have to prove that the accused's consumption of alcohol, [his] incapacity by reason of that alcohol, played any part in the death of the deceased. Provided the Crown has proved to your satisfaction beyond a reasonable doubt that the accused was driving the motor car whilst in the forbidden condition and that his driving was a substantial cause of the death of the deceased, the Crown has proved the elements of this charge..."

19 The applicant submits that his Honour's directions were deficient in three respects. To begin with, reference is made to the directions given by Sholl, J. in R. v. Burnside,[7] which it is submitted represent the way in which the directions should have been given, and it is contended that the directions given by the judge in this case fell considerably short of that standard.

20 We do not think that there is any substance in that aspect of the complaint. In Burnside, Sholl, J. directed the jury that "it must be established that [the accused] was driving, that he was under the influence of liquor at the time, and that that influence was such that he was incapable of having proper control of a motor car." In this case, as has been seen, the judge told the jury that "the Crown...has to prove that the accused was under the influence of alcohol, to such an extent as to be incapable of having proper control of the motor car." In our view the effect of the two directions is identical, or at least the directions which the judge gave were no less effective than what was said in Burnside.

21 Secondly, the applicant contends that the judge's directions were deficient in relation to the meaning of "proper control". It is submitted that it was incumbent on the judge to model his directions on the judgement of the New Zealand Full Court in Lysaght,[8] to the effect that the standard of proper control is that control which a driver of ordinary reasonable prudence and ability ought to exercise whilst driving his motor vehicle and that, whilst an expert driver may be somewhat affected by alcohol, he may still by capable of proper control, whereas a tyro who is skilled only to the degree that ordinarily reaches the standard of proper control, may by a small impairment fall short of the required standard.

22 We do not accept that submission either. Plainly enough, the standard of proper control is the standard of an ordinary reasonably competent driver. But there is no reason to doubt that the jury understood that to be so. It is a question for the jury what constitutes proper control, and that is what the judge told them.

23 The rest of the suggested direction would have been misplaced. It is not the law in Victoria and it was certainly not the evidence that an expert driver's ability properly to control a motor car is any less affected by alcohol than is that of a P plate driver. Dr Odell gave uncontradicted testimony that all drivers who drink are affected by alcohol from blood alcohol concentrations as low as 0.01%, and that the extent of the effect depends not upon the driver's skill as a driver but upon the driver's blood alcohol concentration. We add that a direction of the kind which the applicant now says was required would not have assisted the applicant. He admitted in the course of his record of interview that he was certainly not an expert driver.

24 Thirdly, it is said that the judge erred by telling the jury that the prosecution did not have to prove that the applicant's incapacity to drive played any part in the death of the deceased. The applicant accepts that the judge's direction on the point was in accordance with the decision of the Court of Criminal Appeal in R. v. Feketa.[9] The Court in R. v. Feketa addressed the very argument now raised by the applicant and concluded that where the culpable driving relied on by the prosecution is that specified in s.318(2)(c) of driving under the influence of alcohol so as to be incapable of having proper control of the motor vehicle, it is not necessary that the prosecution establish a causal link between the effects of the alcohol upon the driver and the death of the victim. The applicant submits, however, that Feketa was wrongly decided and that it should not now be followed. As the appellant would have it, the jury should have been directed that they could not convict the applicant of culpable driving unless satisfied beyond reasonable doubt that the victim's death was caused by the applicant being so much under the influence of alcohol as to be incapable of having proper control of the motor car.

25 In Feketa a collision occurred at 6.30 p.m. between the car driven by the accused and the car in which the deceased was a passenger. At the time of the collision the car driven by the accused was on the incorrect side of the road. The Crown case included evidence that the accused had been drinking alcohol during the day and that in the opinion of at least two police officers the accused would have been incapable on account of his consumption of alcohol of having proper control of a motor vehicle.[10] A breath sample taken from the applicant at about 8.30 p.m. gave a reading of 0.190 per cent blood alcohol concentration. In directing the jury, the trial judge instructed them that, providing the Crown established that at the time of the accident the applicant had been under the influence of alcohol to the requisite degree, it was not necessary for the Crown to establish that such driving under the influence of alcohol had caused the death of the deceased. The accused was convicted of culpable driving. On appeal the accused contended that the judge had erred in directing the jury that it was not necessary for the Crown to establish that such driving under the influence of alcohol had caused the death of the deceased. But the Court of Criminal Appeal rejected that contention, as follows:

"The problem is one of statutory interpretation and we have not been referred to any authority directly bearing upon it. Our reasons for the view we have reached are as follows: In the first place, subs, (2)(c) commences with the word 'whilst' which has a temporal connotation. If the legislature had intended that a causal connection between the ingestion of alcohol and the death must be shown it would not have been difficult to word the paragraph accordingly. Secondly, it is clear from the terms of subs.(1) that it must be shown that the culpable driving caused the death but the words do not mean, in our opinion, 'any person who, because he drives culpably, causes the death ... '. The words mean 'any person who causes the death while driving culpably, that is under the influence of alcohol etc.' This conclusion appears to us to follow from the fact that par. (c) provides that a person drives culpably if he drives whilst under the influence, that is by reference to a temporal condition. The appropriate expansion of subs.(1) is not, in our view 'any person who by reason of driving under the influence causes the death etc.' but 'any person who causes the death by driving whilst he is under the influence etc..

Some guidance is to be found in the introductory words of subs.(2). The legislature has not purported to define the word 'culpable' which in subs.(1) may be thought to be used adjectivally to describe the driving which must be causally linked with the death. Instead the legislature has specified circumstances which, if found to coincide with the driving which causes death, makes that driving culpable within the meaning of subs.(1).

Accordingly it would not be strictly correct to read subs.(1) by substituting for the word 'culpable' the words of s.318(2)(c), an exercise which might have utility if that word were defined rather than made operative by reference to circumstances shown to co-exist with death caused by driving. The words used by the legislature in the circumstances point to its intention to treat the driving as making the causal link with death without introducing a further causal link between a defined state of intoxication and that driving. It would not be surprising if the legislature regarded it as unnecessary to require such a causal link to be proved in circumstances in which by the dictates of common sense it might well be assumed.

It is, of course, possible to postulate circumstances which may result in hardship on either of the two views. But the word 'causes' must be construed in its legal sense, that is as denoting a causa causans and not merely a causa sina qua non. Consequently if a person who is driving whilst under the influence of alcohol has the misfortune to be involved in an accident which results in the death of another person but which was not in any relevant sense caused by him he will not be guilty of an offence under subs.(1). This will not be, however, because the death was not caused by his alcoholic state but because it was not caused, in the relevant sense, by his driving.

It seems to us that this view would be in keeping with a presumed legislative policy to impose what might be akin to an absolute liability on persons who drive whilst under the influence of alcohol. If, while so driving, they cause the death of another person they will not be heard to debate the question whether they caused the death by reason of their intoxication or whether by reason of some other piece of negligence, inattention or circumstance. It is in our opinion entirely consistent with modern legislation in relation to driving offences for the legislature to desire to exclude possible refined debate in relation to this type of offence provided that it is proved that the driver (a) caused the death of another person in the sense we have referred to and (b) that when he did so he was under the influence of alcohol to such an extent as to be incapable of having proper control of the motor car."[11]

26 With respect, it may be doubted that sub-s.(2)(c) was intended to have the effect which the court ascribed to it. It appears that s.318 was enacted in its present form in response to a report of the Chief Justice's Law Reform Committee on Motor Manslaughter in 1967 and, according to the Report, the Committee intended that liability under sub-s.(2)(c) should be limited to cases in which death is caused by the accused being so much under the influence of alcohol as to be incapable of having proper control of his or her motor car. As the Committee put it:

"(a) The drafting method used is to provide in subsection (1) for a general statement of the offence and the maximum punishment, leaving definitions relevant to this general statement to subsection (2). The expression 'culpable driving' has been chosen because it is not used as a term of art in the existing law and therefore causes a minimum risk of confusion in its interpretation.

(b) The four different forms of culpability specified in sub-section (2) have been chosen because they appear to us to cover the most common, and all the likely, facts giving rise to the causing of death by driving. Driving under the influence of alcohol or drugs does not appear to require further definition. Each is a concrete concept capable of ready application. ...

In subsections 2(c) and 2(d) the customary legislative form 'to such an extent as to be incapable of having proper control of the vehicle' has been omitted in each case. This is because the requirement that there be a causative link between the alcohol or the drugs, as the case may be, is imposed by section (1). Section (1) requires not only that the defendant drive culpably but also that such culpable driving be the cause of the death. This is the effect of the presence in the first line of subsection (1) of the word 'by'. If the usual reference to incapacity to control the vehicle were inserted into subsections 2(c) and 2(d) the effect would be to confuse the issue by adding a further requirement that the defendant not only cause the death but also be incapable of controlling his vehicle. In practice he will not have caused the death because he has been driving under the influence unless his driving under the influence was directly related to the death which happened. It is therefore desirable to leave subsections 2(c) and 2(d) in their present form...."

27 It will be noted that the legislation as enacted added to sub-ss.(2)(c) and (2)(d) the words "to such an extent as to be incapable having proper control" and, in view of the Committee's Report, it might be thought that Parliament added those words in order to be doubly sure that an accused not be convicted of culpable driving on the ground of being under the influence of alcohol unless it were proved that death was caused by the accused being incapable of having proper control.

28 That said, however, Feketa was decided before the enactment of s.35 of the Interpretation of Legislation Act 1984 and thus at a time when it was not permissible for a court to have regard to extrinsic materials to the same extent as it is today. As is noted in Pearce & Geddes,[12] the general view then was that although a court could have regard to Parliamentary and executive materials in order to discern the mischief with which legislation was intended to deal, it was not permissible to look at such materials in order to resolve an ambiguity or doubt as to the meaning of a particular provision.[13] Indeed in the late 1970's the High Court had gone even further in Charles Moore,[14] stating that the court would not refer to reports of Parliamentary committees for any purpose to aid the construction of a statute. Accordingly, the court in Feketa was in effect limited to textual analysis of the statute as the only available means of interpretation and, as an exercise in textual analysis, the decision in Feketa is difficult to fault. If paragraphs (c) and (d) had the meaning for which the applicant contends, they would in effect add nothing to paragraph (b); for to drive while so intoxicated or under the influence of drugs as to be incapable of properly controlling a motor car is surely gross negligence.

29 As a matter of purposive construction, or construction according to the mischief against which the legislation may be supposed to be directed, there is also a lot to be said for the view that paragraphs (c) and (d) were given the meaning attributed to them in Feketa in order to avoid the difficulties of proof which could arise if the Crown had to prove beyond reasonable doubt that an accused's drink or drug induced inability properly to control a car was causally related to a death caused by driving the car. As counsel for the respondent reminded the court, it is not all that long ago that "experts" used to be called in drink-driving cases to testify that they had tested an accused after the consumption of large amounts of alcohol and found that the accused's ability to control a motor car was not the least affected.

30 Admittedly such a construction does give rise to difficulties. When instructing a jury where gross negligence is alleged as constituting the culpable driving as specified in s.318(2)(b), the prosecution is required to establish a causal connection between the driver's gross negligence and the victim's death: Heron,[15] R. v. Franks,[16] R. v. de Zilwa.[17] As the present case illustrates, it is not uncommon for the prosecution to rely upon the impairment of the driver's capacity to properly control his motor car as a particular of gross negligence. In that circumstance the jury would have to be satisfied that the impairment of the driver's capacity to properly control his motor car in conjunction with the other aspects of his driving, alleged to be grossly negligent, were a substantial cause of the victim's death. If the prosecution also relied upon sub-s.(2)(c) the jury would have to be told that it was not necessary for the prosecution to establish for the purpose of that form of culpable driving, that the driver's impairment caused the accident.

31 But however all that may be, we think it is now too late in the day for this court to depart from the construction of s.18 that was laid down in Feketa. It is almost 25 years since Feketa was decided and it has been followed and relied upon repeatedly over those years.[18] The Act has been amended a number of times without any amendment to s.318. And the Act has been the subject of at least one report by the Law Reform Commission which noted in its discussion paper of July 1991[19] that, in the way in which s.318(2)(c) and (d) had been interpreted, it was not necessary for the prosecution to prove a causal connection between the fact that the driver was under the influence and death. In those circumstances, in our view, if any change to the Feketa interpretation of s.318 is thought to be required it should come from the ultimate court of appeal or from Parliament.[20]

32 In our view Ground 2 fails.

Ground 3: Misdirection on flight

33 The applicant's third ground of appeal is that the judge erred in the directions which he gave concerning the applicant's flight from the scene of the collision. The argument is based on the recent decision of this court in R. v. Heyes.[21] It is said that the judge did not make clear that evidence of flight could only be used as evidence of consciousness of guilt if the jury were satisfied that it sprang from a realisation of guilt of the crime charged, namely, culpable driving, as opposed to a realisation of having been engaged in some lesser unlawful activity.

34 Until Heyes was decided the law in this state as to the directions to be given to a jury concerning flight was as established in Woolley[22] and restated in Rice[23] as follows:

"There is no authority for the proposition that the accused must be found to have acted out of a consciousness of guilt of a particular offence where the wrongdoing may cover a number of possible charges. Thus, where a serious assault has taken place, it would be fanciful to make a possible resort to the conduct in question by the jury to depend on whether the accused had a consciousness of guilt of particular offences such as causing grievous bodily harm, or actual bodily harm or common assault."[24]

35 In R. v. Heyes,[25] however, it was held by majority that where murder and provocation and unlawful and dangerous act manslaughter were all in issue, an accused's post-offence lies could not generally be used to determine that the accused was guilty of murder as opposed to manslaughter by an unlawful and dangerous act or as the result of provocation.[26] In the view of the majority, the lies could only be used in determining the discrete question of whether the accused was justified in killing the deceased in self-defence.

36 More generally, the majority said, where the issues in a trial are the commission of an offence and the commission of an included offence, lies or other post-offence conduct cannot be used to determine that the accused is guilty of the offence charged as opposed to a lesser included offence, and hence the jury should be directed that they cannot reason that lies or other post-offence conduct support an inference that the accused committed a particular offence; they bear only upon the question of whether the accused was implicated in unlawful conduct.[27]

37 In this case, the issue was whether the applicant was guilty of culpable driving. There were no lesser included offences charged or left to the jury. But the applicant's conduct as alleged by the prosecution may have constituted lesser offences - such as dangerous driving, careless driving, failing to stop after an accident, failing to render assistance and driving with a blood alcohol concentration above that permitted by statute. Counsel for the applicant argued that, based upon the majority's reasoning in Heyes, evidence that the applicant fled the scene could not be used to determine that he was guilty of culpable driving as opposed to any of those lesser offences.

38 Thus, it was argued on the applicant's behalf that the judge should not have left such evidence for the jury to consider or should have directed the jury that they could not safely infer from the applicant's flight that he was conscious of being guilty of culpable driving as opposed simply to being implicated in unlawful conduct which constituted one or more of these lesser offences.[28]

39 In our view the argument cannot be sustained. For even allowing that a possible explanation of the applicant's post-offence conduct was that he was conscious that he had committed one or more of the lesser offences, as opposed to the offence charged, it does not follow that the post-offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he had committed "the offence charged".

40 We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases.[29] And, to the extent that Heyes implies the contrary, in our view it should not be followed.

41 The decision in Heyes[30] was based on the Canadian decisions of R. v. Arcangioli[31] and R. v. Peavoy.[32] To a large extent, they were based on a notion[33] that lies and post-offence conduct are incapable of evidencing consciousness of guilt of a specific offence if they are reasonably susceptible of another possible explanation.

42 So, in R. v. Arcangioli, the Supreme Court of Canada said that evidence of lies or flight:

"...can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently, where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence." [34]

43 Similarly, in R. v. Peavoy, the Ontario Court of Appeal said:

"...Where, as here, the accused is charged with second degree murder, evidence of after-the-fact conduct is equally consistent with the accused having committed manslaughter as it is with murder. Accordingly, as the after-the-fact conduct does not make it more likely that murder was committed as opposed to manslaughter, it cannot be used as proof of intent to commit murder." [35]

44 These propositions do not accurately reflect the law in this country. Lies and post-offence conduct are a species of circumstantial evidence. An inference of guilt may be drawn from the concatenation of circumstances including the post offence conduct. The process of reasoning from "strands in a cable" of circumstantial evidence discussed in Shepherd v. R.[36] was applied in Edwards v. R.[37] Whether a statement proved to be false is capable of demonstrating a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend upon "the terms of the statement, the circumstances in which it is made, the nature of the offence charged and the other evidence in the case".[38]

45 As with other forms of circumstantial evidence of guilt, a jury may accept evidence of lies and other post-offence conduct and act upon it without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is to say, without being satisfied that there is no other explanation of the lies and post-offence conduct which is reasonably open on the facts).[39]

46 Deane, Dawson and Gaudron, JJ. made the point in Edwards, as follows:

"...The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him [or post offence conduct] exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."[40]

47 Similarly, in R. v. Kotzmann[41] Callaway J.A. illustrated how a lie allegedly told from a consciousness of guilt, when constituting "a strand in the cable", was to be considered with all of the other accumulation of evidence.

48 The result in Heyes[42] was also to some extent based on the view that the decision of the English Court of Appeal in R. v. Richens[43] and the decision of the Queensland Court of Appeal in R. v. M[44] were to the same effect as the two Canadian decisions. But there were important differences. The approach in R. v. Richens and R. v. M was to leave to the jury, as the judges of the facts, the question whether it is possible to infer guilt of a specific offence and to warn the jury that in drawing any such inference the weight which it is appropriate to place on the evidence will depend on whether there are other possible reasons for the lies or flight.

49 So in R. v. Richens, where the accused admitted that he had killed the deceased and the only question was whether he was guilty of murder or manslaughter by reason of provocation, there was no suggestion of directing the jury that the post-offence conduct was without probative value with respect to murder. The case was concerned with the directions which should have been given to the jury to equip them for the task of determining the weight they should properly place on evidence of post-offence conduct. Lord Taylor, C.J. said that it was necessary for the judge to give the jury a careful direction as to how, as a matter of law, they should regard the accused's conduct after the killing and the lies he admittedly told. His Lordship said that the jury should have been alerted to the fact that before they could treat the lies as proof of guilt of the offence charged they must be sure that there was no other possible explanation for the lies which destroyed their potentially probative effect. Applying that concept the Lord Chief Justice said that the jury had to be sure that the attempts to conceal the killing and lies were inconsistent with the appellant's case that he had killed as a result of provocation and pointed to murder. His Lordship was of the view that something to the effect of the following direction[45] would have been in order:

"The defendant has admitted that he lied to the police. You must consider why he lied. The mere fact that the defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, for example: to bolster a true defence, to protect someone else, to conceal disgraceful conduct of his, short of the commission of the offence, or out of panic or confusion. If you think that there is, or may be, some innocent explanation for his lies, then you should take no notice of them but if you are sure that he did not lie for some such or other innocent reason, then his lies can support the prosecution case."[46]

The approach taken in Richens has now become well established in the United Kingdom.[47]

50 Similarly, in R. v. M, where the accused had been charged with rape and there were lesser included offences of indecent dealing, it was held that the judge should have drawn the jury's attention to the difficulty of inferring from flight a consciousness of guilt of anything more than the included offence and warned the jury that they could not safely infer from the flight alone that the appellant was conscious of having raped the complainant.[48] There is no suggestion in R. v. M that the jury were to be told that the evidence of flight had no probative value with respect to the offence of rape.

51 It is also to be noted that, although the specimen charge in Richens was couched in terms that the jury could not treat evidence of lies as supporting the prosecution case unless they were sure that the lies were not told for another reason, Lord Taylor, C.J. went on later in the judgment to refer with approval to the remarks of Lord Devlin, delivering the opinion of the Privy Council in Broadhurst v. R.,[49] as follows:

"It is very important that a jury should be carefully directed on the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if on the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."[50]

52 That accords with Edwards. A jury may have regard to lies and post-offence conduct without being satisfied that there are not other potential explanations for them apart from guilt of the offence which is charged, even though it is customary to direct a jury, for "prudential reasons",[51] that they should not act on evidence of consciousness of guilt unless satisfied of it beyond reasonable doubt. As we have already said, lies and post-offence conduct are circumstantial evidence which the jury may take into account together with all of the other evidence, giving to the lies and conduct such weight as the circumstances allow. As Shepherdson, J. put it in R. v. Melrose,[52] in a passage which has since been approved by the South Australian Court of Criminal Appeal in R. v. Power[53] and by the New South Wales Court of Criminal Appeal in R. v. Dat Quoc Ho :[54]

"Since Dickson the High Court has decided Chamberlain (No.2.)[55] I agree with my brother Connolly's analysis of and comments on Chamberlain (No. 2).

I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person's flight but that if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference."

53 To same effect Bell, J., speaking for the New South Wales Court of Criminal Appeal in R. v. Ho, said:[56]

"Since Edwards it has been repeatedly held by this Court that `where lies are used merely as evidencing a consciousness of guilt, as part of the circumstantial evidence case, it is unnecessary to establish either the lie or its character beyond reasonable doubt': Taylor (unreported, Court of Criminal Appeal, NSW, No 60593 of 1993, 18 April 1995) at 19 per Hunt CJ at CL; citing Dellapatrona (1993) 31 NSWLR 123 at 150; Sandford (1994) 72 A. Crim. R. 160 at 181; Small (1994) 33 N.S.W.L.R. 575 at 596."

54 Certainly, if a lie or post-offence conduct is the only evidence from which to infer guilt of a specific offence, the jury would have to be directed that they could not draw the inference of guilt unless satisfied that there was no other reasonable explanation of the lie or post offence conduct.[57] But where, as is usually the case, a lie or conduct is part of the totality of the circumstantial evidence from which an inference of guilt may be drawn, "an inference of guilt may be drawn even though a particular 'primary' fact falling short of the whole would be insufficient to exclude other inferences."[58] It follows that, in the bulk of cases, the Canadian approach is likely to produce different results to the approach in R. v. Richens and R. v. M.

55 So much indeed is demonstrated by Heyes itself. As recorded in the reasons of the majority in Heyes, the trial judge's directions were as follows:

"In his charge to the jury the trial judge said that they must be satisfied that the lies were told because the applicant was conscious of guilt and was anxious to avoid the consequences of his guilt and for no other reason. He said that persons could lie for a variety of reasons which did not connote guilt. His Honour tied the conduct to the count of murder, saying that the Crown case was that each lie he told was told 'because the accused knew that the truth of the matter about which the lie is told would implicate him in the murder'. Later he said:

'Is the particular conduct some evidence from which, along with other evidence, you can infer that the particular accused was aware that he had committed an act with murderous intent? Is particular conduct some evidence from which, along with other evidence, you can infer that the particular accused was aware that he had committed a culpable act and had not acted in self-defence.'"[59]

56 Judged according to the Canadian approach, the directions in Heyes were held to be productive of a miscarriage of justice. But even judged solely by reference to the approach in England and in R. v. M, the directions in Heyes accorded more or less precisely with the specimen directions endorsed by Lord Taylor, C.J. in Richens and fell very little short of the warning which Davies, J.A. said in R. v. M was desirable but on the facts inessential.

57 Interestingly, it seems that the approach in Canada may have softened since Arcangioli and Peavoy. For as stated by Major, J. of the Canadian Supreme Court in the more recent decision of R. v. White,[60] :

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

That accords more closely with the approach in R. v. Richens and R. v. M and importantly also with Edwards.

58 In any event, however, an examination of decisions of intermediate appellate courts of this country shows that the reasoning in Arcangioli was expressly rejected by the New South Wales Court of Criminal Appeal in R. v. Dat Quoc Ho,[61] and expressly or implicitly rejected by the Western Australian Court of Criminal Appeal in Axford v. R.[62] and Banks v. R.,[63] by the South Australian Court of Criminal Appeal in R. v. Andrews,[64] and by the Queensland Court of Criminal Appeal in R. v. Wehlow[65] and R. v. Box & Martin.[66] It is moreover plainly inconsistent with the oft cited reasoning of Winneke, P. in R. v. Nguyen,[67] and with other recent decisions of this court. The strong preponderance of reasoning of this Court[68] prior to Heyes and the strong preponderance of reasoning in other intermediate courts of appeal in this country is against the sort of approach expressed in Peavoy and _Arcangiol_i and in favour of dealing with the sorts of difficulties identified in those cases by emphasising the need for appropriate directions where problems may arise in the drawing of an inference of a consciousness of guilt.[69]

59 In Ho Bell, J. with whom Meagher, J.A. and Hidden, J. agreed, held that the reasoning in Arcangioli was inconsistent with Edwards and with the clear course of authority in New South Wales referred to in the passage we have quoted that where lies are used as evidence of consciousness of guilt as part of a circumstantial evidence case it is unnecessary to establish either the lie or its character beyond reasonable doubt. Her Honour expressly approved the following passage from the judgment of Doyle, C.J. in R. v. Power:[70]

"In my opinion, the evidence [of flight] was admissible. Taken as a whole it was evidence upon which the jury might conclude that the conduct of the appellants manifested a consciousness of guilt. There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see, eg, Melrose[71]. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman[72], is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion, the approach to be taken is that indicated by Sheperdson J in Melrose [73] (assuming that the evidence is not intractably neutral):

'I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person's flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.'

In my opinion, the judge rightly admitted the evidence for the purpose identified by the prosecution."

60 Similarly, in Axford,[74], which dealt with the very point which arose in Heyes (of whether evidence of consciousness of guilt (in that case lies) could be used as evidence from which to infer murderous intent as opposed to a lesser intent), Franklyn, J., with whom Malcolm, C.J. and Wallwork, J. agreed,[75] said:

"In my view there is nothing in Ground (3). His Honour's direction as to the use that the jury could make of the admitted lies was proper and appropriate. It accorded with the direction proposed by the majority in Edwards v The Queen [1993] HCA 63; (1993) 68 ALJR 40 at 48. Indeed applicant's counsel conceded that the lies told could be used to show consciousness of guilt but, in his submission, not of wilful murder or murder, but only of manslaughter. The charge faced by the applicant was that of wilful murder. That was for the jury to firstly consider. It was entitled to take into account the lies told if satisfied of their relevance as instructed by His Honour. It is not necessary that the lie, if found to be a relevant lie, go directly to the issue of intent. The test of its relevance is that it 'must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie'. (Edwards (supra) at 48). That implication can only be by way of inference and, in my opinion, it may, in appropriate circumstances, result from the lie itself and, in other circumstances, from the lie considered together with other direct or circumstantial evidence. Whether or not the implication is to be made and in what respect it implicates the accused are matters for the jury. In my view it would be inappropriate and indeed wrong for the learned trial Judge to have directed the jury, as the applicant's counsel submits he should have done, that it could only use the lies to inculpate the applicant in the offence of manslaughter.

61 In Nguyen,[76] in a case in which the accused admitted that he had shot his wife, and thus in which the issue was whether he had shot with murderous intent or accidentally as he claimed, Winneke, P. with whom Chernov JA and Smith A.J.A. agreed (after referring to the decision of the Supreme Court of Canada in White) said:[77]

"The probative strength of post-offence conduct, such as concealment of weapon 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.[78] 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.[79] 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 that 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.[80]

These observations have been referred to with express approval by Kirby J in Conway v. R. [81]

62 Some of the observations of the Queensland Court of Appeal in R. v. Huebner and Maher[82] appear consistent with the view that, if an accused who is charged with murder admits to the unlawful killing of a deceased, so that the only issue in effect is intent, post-offence conduct is not capable of supporting an inference of murderous intent. But it is to be noted that in dismissing an application for special leave to appeal from that decision, the High Court constituted by Gummow, Callinan and Heydon, JJ. said that they did not endorse those observations and that they should not be taken as indicative of any sound general principle.[83]

63 The majority in Heyes recognised the possibility that there may be cases where evidence of consciousness of guilt is probative of guilt of a charged offence as against a lesser included offence. But they permitted of only two exceptions to the general exclusionary rule which they propounded. The first, which they said they regarded as being more theoretical than real, was where the evidence of consciousness of guilt bespeaks guilt of the charged offence as opposed to a lesser included offence, and they gave as an example post-offence conduct out of all proportion to the lesser included offence. The second was where the issues are not confined to which of two crimes the accused committed but include the question of whether the accused was guilty of any offence at all. They said that in such circumstances the jury could be directed that they may take lies or other post-offence conduct into account in determining whether the accused was guilty of an offence, but not for determining which offence.

64 With respect we are not persuaded that it is either necessary or desirable so to restrict the circumstances in which a jury may find evidence of post-offence conduct to be probative of guilt of a specific offence as opposed to a lesser included offence or other offences on a multiple count presentment[84] or, as in the present case, other offences disclosed by the evidence. The interrelationship between evidence of consciousness of guilt and other evidence is inherently more complex than that, and the permutations and combinations of facts in which it may fall to be applied are infinitely variable. As Winneke, P. in effect observed in R. v. Burrows,[85] exclusionary rules of the kind propounded in Heyes unnecessarily confine trial judges where post-offence conduct may be relevant and probative.[86]

65 Of course, there will be circumstances in which post offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple count presentment, or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.

66 But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.

67 Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused's words and conduct before and during the killing and forensic evidence may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent.[87] And comparable reasoning is equally applicable in trials for other offences.

68 In some cases, for example, there may be something about the exact terms of a lie which when matched against the known circumstances of the actus reus leads a jury to conclude beyond reasonable doubt that the accused had the necessary intent or mens rea. The point is aptly illustrated in the judgment of Heenan, J. in Meko v. R.[88] In other instances, there may be something about the precise circumstances of flight or the nature of other post-offence conduct which, when related to the circumstances and means by which the actus reus was committed leads a jury more confidently to conclude that the accused must have had the necessary intent or mens rea. Yet again in other cases it may be a combination of those things with others of similar or disparate kinds, according to the facts of the case, or it may be something else among the myriad facts and circumstances which inform the context to human interaction. Examples can be multiplied.

69 Consequently, as the Court of Criminal Appeal said in R. v. Perera,[89] and reiterated in Woolley,[90] it is folly, if not impossible to attempt to formulate general propositions or rules which will govern the occasions on which lies or conduct give rise to an inference that the accused thereby displayed a consciousness of guilt. Everything depends on the circumstances of the particular case. There is no sound legal reason to restrict, to the two circumstances mentioned in Heyes, the circumstances in which a jury may find evidence of consciousness of guilt to be probative of guilt of a specific offence as opposed to another offence. To do so would usurp a large part of the fact finding function of the jury and in most cases require juries to act contrary to the dictates of common sense and experience which they are charged to bring to their task. As Major, J. commented in R. v. White:[91]

"The question as to the use that the jury can make of evidence of lies or flight is not a formula. The result will always turn on the nature of the evidence in question and its relevance to the real issues in dispute."

70 Plainly, however, it is necessary to keep in mind the controls which customarily apply to the use of evidence of consciousness of guilt as prescribed in Edwards. Post-offence conduct is not to be left to a jury as evidence of consciousness of guilt unless it has first been precisely identified together with the circumstances and events that are said to indicate that by engaging in the conduct the accused demonstrated a consciousness of having committed the offence which is charged.[92]

71 The judge must also be satisfied that the post-offence conduct when taken in conjunction with the circumstances and events so identified is capable of demonstrating such a consciousness of guilt.

72 So, if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral,[93] the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt.[94] But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified is capable of demonstrating such a consciousness of guilt, the post offence conduct should be left to the jury to determine whether it has that effect.[95] Similarly, where evidence of consciousness of guilt, which although by itself equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.

73 There are also inherent limitations on the use of post-offence conduct to corroborate the testimony of a witness. A finding that an accused has lied and that the lie provides the basis for an inference of consciousness of guilt cannot constitute corroboration of a witness if that witness's testimony must be taken into account in order to draw the inference.[96] That is to say, the evidence to be corroborated cannot form part of the accumulation of evidence to be considered in conjunction with the post offence conduct to determine whether an inference may be drawn from the post offence conduct.

Directions as to consciousness of guilt

74 It is necessary too to bear in mind the directions which a trial judge must give concerning evidence of post-offence conduct which is relied on as establishing consciousness of guilt of the offence charged.

75 To begin with, the term "the offence charged" was described in Woolley as an obvious and usually convenient way of relating the post offence conduct to the material wrongdoing as opposed to some other wrongdoing. As was said, it would be fanciful to make a jury's resort to evidence of consciousness of guilt of a particular offence depend upon whether the accused had a consciousness of guilt of the particular offence as opposed to unlawful conduct in which the accused has engaged. Consequently, juries may be directed in terms of whether evidence of lies or other post-offence conduct demonstrates a consciousness of guilt "of the offence charged".[97] But it will often be helpful for a judge to add an explanation to the jury that reference to "the offence charged" is a convenient way of saying that the accused had a consciousness of the alleged wrongful conduct which constituted the offence charged rather than a consciousness of a specific crime as it is known to the law.[98]

76 Secondly, as already stated, the post-offence conduct must be precisely identified, as too must be the circumstances and events that are said to indicate that by engaging in the conduct the accused demonstrated a consciousness of his conduct constituting the offence which is charged. The judge must also be satisfied that the conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating consciousness of guilt.

77 Thirdly, as was observed in Woolley, [99] where there are a number of charges in issue, either as separately listed counts on the presentment or as statutory or common law alternatives to the count or counts which are charged, the jury must be directed to consider the lies and post-offence conduct in the light of each charge separately.

78 Trials which concern a one count presentment with lesser included offences, or a multiple count presentment or a case where the evidence adduced to prove a particular charge discloses the possible commission of other offences all raise the question of whether the post offence conduct relates to a particular offence charged or to "other offences". Accordingly, in such cases the jury may have to be alerted to the fact that, before they can treat the post-offence conduct or lies as proof of guilt of the offence they are then considering, they must be satisfied, having regard to all the evidence, that a consciousness of guilt of such "other offence" does not provide a possible reasonable explanation for the lies.

79 Fourthly, it is open to question whether as part of the directions on the use of post-offence conduct it is necessary or desirable for the judge to refer to any included offences which are not left to the jury. In Woolley it was said not - it was enough that the jury be made to understand that an accused may engage in post-offence conduct of the kind in question for reasons that do not indicate consciousness of guilt of the offence charged and that any defence explanations for the lies or conduct are put to the jury. In our view that remains the case. The directions to be given to the jury must depend on the issues in the case, and a lesser included offence is not in issue unless it is left to the jury.

80 The approach now followed in England which is reflected in R. v. Miah has much to commend it:

"In a murder case when there are issues on whether the defendant killed the victim and also on provocation, then it seems to us that lies could be relevant at two stages. First the Crown may rely on lies to support its case that the defendant committed the homicide at all. Secondly the Crown may rely on lies in support of its case that it can disprove provocation - the burden of doing so always being on the Crown. It is possible that the same lies will be relied on by the Crown for both purposes; but it is also possible that certain lies could be more useful to the Crown in relation to provocation, eg. to show that either the defendant did not kill as a result of having lost his self control or to show that what he did was not justifiable - using the tests and factors that were identified in Smith.

We think that in a murder case where both the issue of homicide and provocation are contested and the Crown relies on lies to prove its case, then it is advisable that the Crown should state clearly in advance of speeches whether it relies on lies for one or both of the purposes we have set out above. This will assist a judge in fashioning the direction that he gives on the effect of lies. If, in such a case, the Crown relies on certain lies in support only of its case that the defendant committed homicide, then the judge should give a Lucas direction. At the same time he must warn the jury that even if it is satisfied that (a) the lie was stated and was deliberate; (b) it relates to a material matter and (c) there is no innocent explanation for it, then it must not regard that lie as of any assistance in demonstrating murder as opposed to manslaughter. That is, we understand, the effect of the decision in this court in R v Woodward [2001] EWCA Crim 2051 at paragraph 37, per Kennedy LJ.

If, however, the Crown relies on the lies as support of proof of homicide and also as support for disproving provocation (in respect of either of the aspects set out by the House of Lords in Smith), then it seems to us that the judge should identify clearly for the jury the respects in which the Crown relies on the alleged lies. Otherwise the jury will be left in doubt, as this court held in the case of R v DT [2002] EWCA Crim 2958 at paragraph 25 per Kennedy LJ. Once the judge has identified for the jury the respects in which the Crown relies on the alleged lies, he should then tell the jury that it must consider first whether the lie was stated and whether it was deliberate. If the jury is so satisfied, then it must decide whether the lie was told in relation to (a) the issue of whether the defendant committed the homicide or not or (b) the issue of whether he did so having lost his self control or (c) the issue of whether his actions were, objectively, justified. The judge should then direct the jury that, whatever issue it thinks the lie may be relevant to, it can only take the lie into account if the jury is satisfied that there is no innocent explanation for it in relation to the issue [to which] the jury has decided that the lie is relevant.

If the Crown only relies on the lies to disprove provocation, then, once again, we think that the judge must say so clearly to the jury. He must tell the jury that the lie is of no use to it in deciding the question of whether (if it is in issue) the defendant committed the homicide.[100]

81 In our view, although what was said in Miah was directed to cases of homicide, it is capable of application across a broad range of cases whatever the offence charged and whether there is one or more than one offence to be left to the jury. So, in a case where only one charged offence is to be left to jury, the Crown may seek to rely on post-offence conduct as evidence of consciousness of guilt for the purposes of one or a number of issues, thus:

a) the Crown may seek to rely on the post-offence conduct as evidence of consciousness of guilt of the actus reus; or

b) the Crown may seek to rely on the post-offence conduct as evidence of consciousness of guilt to prove intent or mens rea; or

c) the Crown may seek to rely on the post-offence conduct to negative possible defences or justifications (for example, self-defence, defensive homicide, manslaughter-self defence, duress, or sudden extraordinary emergency); or

d) the Crown may seek to rely on the post-offence conduct for a combination of two or more of the foregoing purposes.

82 Preferably, therefore, before the commencement of evidence, and in any event before the commencement of final addresses, the Crown should be required to identify to the judge, in the absence of the jury, particulars of the following:

a) any evidence of post-offence conduct on which the Crown seeks to rely as evidence of consciousness of guilt;

b) to what issue the evidence of post-offence conduct as evidence of consciousness of guilt relates; and

c) for the purposes of each such issue, the evidence in the case of any acts, facts and circumstances (in addition to the post-offence conduct itself) which is said to show that the post-offence conduct demonstrates consciousness of guilt as to that issue.

83 In a case of a multiple count presentment in which more than one offence charged is to be left to the jury, the Crown should be required to provide similar particulars in respect of each charge in respect of which the Crown contends that the evidence of post-conduct is evidence of consciousness of guilt.

84 In all cases, it will be for the judge to determine whether evidence of post-offence conduct, taken in conjunction with any specified acts, facts and circumstances, is capable of constituting evidence of consciousness of guilt for the purposes of an issue.

85 In then charging the jury on any evidence which is capable of constituting evidence of consciousness of guilt for the purposes of an issue, the judge should take each offence left to the jury in turn and, by reference to that offence, identify for the jury:

a) the evidence of post-offence conduct upon which the Crown relies;

b) each issue in respect of that offence for which the Crown relies upon the evidence of post-offence conduct; and

c) the acts, facts and circumstances which are said to show that the post-offence conduct bespeaks consciousness of guilt for the purposes of that issue.

86 Consistently with Edwards, the judge should direct the jury that there may be many reasons for post-offence conduct apart from consciousness of guilt. For example, it may be the result of panic or fear, or a wish to escape an unjust accusation, or because of guilt of some other lesser criminal offence or moral wrongdoing falling short of criminal behaviour, or to protect some other person or to avoid a consequence extraneous to the offence, and of course the judge should direct the jury on any explanations suggested by the defence.

87 Finally, the judge should further direct the jury that they may not take the evidence of post-offence conduct into account for the purposes of an issue unless, having regard to all of the evidence in the case, the acts, facts and circumstances, they are satisfied that there is no explanation of the conduct in relation to that issue other than consciousness of guilt.

88 In this case, the judge did most of those things. There was only one charge left to the jury - the count of culpable driving; the only post offence conduct (apart from lies) relied upon was failing to stop at the scene of the accident; and the only issue for the purposes of which the Crown relied on the post offence conduct was whether the applicant was driving while affected by alcohol. The judge put the issue to the jury as being whether: "The accused merely should not be driving affected by alcohol, and that is why he fled the scene. The story about his father is just a smokescreen, as is the whiskey." In effect, the judge thereby also identified the conduct said to constitute evidence of consciousness of guilt, namely, fleeing the scene and pretending to drink whisky or drinking whisky to mask the fact that he had been drinking before driving. The judge referred to the circumstances and events that were said to indicate that by engaging in that conduct the accused demonstrated a consciousness of having committed the offence with which he was charged, namely, that he knew or feared that if he had remained at the scene his guilt would be apprehended.

89 The judge further explicitly directed the jury that before they could infer guilt from the post-offence conduct, they would have to be satisfied that the applicant had in fact fled the scene and that the cause of his flight was a consciousness of his guilt and a desire to escape the consequences of "this crime" [which, in the context, could only have meant the crime of culpable driving with which he was charged] and "not some other wrongdoing such as fear of being wrongly accused of this crime". The judge also made plain that the jury could not draw an inference of guilt from the evidence of flight unless they were satisfied beyond reasonable doubt that the accused fled because of consciousness of guilt of "this crime", and he explicitly cautioned the jury that that they should be careful in taking that step to consider the possibility that the accused may have wrongly believed himself to be guilty. Finally, his Honour outlined for the jury the defence explanation of the reason for flight, namely, "the accused's panic and overwhelming wish to see his father and get his advice and help as to what to do, and not any consciousness of guilt...".

90 The complaint made on the applicant's behalf is that the judge did not mention the possibility that the applicant's post-offence conduct bespoke consciousness of having committed another offence disclosed by the evidence falling short of culpable driving. If that be an omission, it was sufficiently addressed by the fact that the judge expressly directed that the jury could not infer guilt from the conduct unless satisfied beyond reasonable doubt that it reflected consciousness of guilt of "this offence", namely, the charged offence "and not some other wrongdoing".

91 It is true that the judge did not use the expression "some other offence". But we do not think that his Honour was required to use that expression. What was required was a direction which made clear to the jury that the consciousness of guilt was of the offence alleged, and the words "some other wrongdoing" which his Honour used were in the circumstances of the case calculated to convey that message.

92 The applicant complains that by the directions which are set out above the judge in effect endorsed a Crown submission that the applicant fled the scene because he knew that he should not be driving while he was affected by alcohol, and that the judge thereby conveyed to the jury that it was sufficient from which to infer consciousness of guilt of culpable driving that the accused fled because he knew that he should not have been driving while he was so affected. The point is based on the last paragraph of the directions and, in particular, the words: "The accused merely should not be driving affected by alcohol, and that is why he fled the scene".

93 In fact, however, the Crown's submission to the jury was not just that the applicant fled the scene because he knew that he had been drinking and should not have been driving. It was rather that:

"...he knew that he was drinking and was substantially responsible for this accident, and that's why he didn't stop."[101]

94 In the result, in our view, the jury would have taken his Honour's abbreviation of the Crown contention to be just that, not as altering its meaning, and we are strengthened in that view by the fact that defence counsel did not take any exception to the way in which the judge abbreviated the point. Evidently, he did not consider that there was any risk of the jury being led thereby into error.

95 The applicant further complains that the passage of the judge's direction which is set out above would have caused confusion in the minds of the jury - by linking the question of the applicant's post-accident consumption of whisky with the question of flight. But we do not think that there is a realistic chance of that having occurred. The Crown prosecutor made the point repeatedly in final address that the jury should reject as untrue the applicant's claim to police that he had consumed between one third and one half of a bottle of whisky after the accident. As the prosecutor put it:

"...I submit you should reject that suggestion. He has made it to throw dust in the investigator's eye, and indeed ultimately in you[r], the jury's eyes. He's done it to mask the fact. He said it to mask the fact and the consequences of his drink driving."

96 Consequently, as it appears to us, the jury would have taken his Honour's reference to the story about the whisky being "a smokescreen" as a reminder of the Crown contention that the jury should reject the idea that the applicant consumed whisky after the accident and thereby should come more confidently to the view that the applicant was driving under the influence and knew it when he fled.

97 It was submitted for the applicant that the judge's directions on flight were deficient in that, although the defence case was that the applicant fled the scene because of panic, the judge did not specifically warn the jury that they must be able to exclude the possbilty of panic before using the fact of flight as evidence of consciousness of guilt. It was contended that the judge's reference to "panic" in the passage of the directions set out above was not sufficient because it was part of a recitation of counsel's argument.

98 We do not accept that submission either. It is true that the judge introduced the matter of panic by referring to what the prosecutor had said about it. But it does less than justice to his Honour's directions to say that the reference to panic was simply part of a recitation of counsel's argument. In point of fact it was the very next thing to which his Honour referred after tracing out the need to exclude the possibility of "some other reason" being the cause of the applicant's flight. And in effect it was bound to appear to the jury as epexegetical of the possible "other reason[s]" which had to be excluded before the flight could be taken as evidence of guilt.

99 Finally on the matter of consciousness of guilt, counsel for the applicant applied ore tenus in the course of argument to add a further ground of appeal, that:

"A miscarriage of justice resulted from the judge's directions to the jury on lies; and in particular, in failing to direct sufficiently or at all that evidence of lies could not be used as going to consciousnes of guilt unless the jury were satisfied that the alleged lie -

a) was deliberate;

b) related to a material issue;

c) told as a result of realisation of guilt of the crime of culpable driving;

d) not told as a result of panic or some other cause."

100 It was submitted that it was a major part of the Crown case that the applicant had lied about drinking whisky after the accident (in order to prevent detection of his blood alcohol concentration at the time of the collision) or, alternatively, that if he had not lied about it, he drank the whisky to prevent detection of his blood alcohol concentration at the time of the collision; in either case because he was conscious of his guilt of having caused the victim's death by driving while under the influence of alcohol and sought to distance himself from it. In those circumstances, it was said, it was essential that the jury be given a full Edwards direction in respect of the alleged lie or the post-accident drinking, and the failure of the judge to give those directions had resulted in a miscarriage of justice.

101 We accept that submission. In truth it was a significant part of the Crown case that the applicant's story about drinking whisky after the collision was a lie. As has been seen, Dr Odell gave evidence that upon his analysis of the applicant's blood alcohol at the time of the preliminary breath test and the applicant's blood alcohol at the time of the subsequent Draeger breath test, the applicant was unlikely to have drunk the amount of whisky he claimed or indeed any amount of whisky. Thus:

"PROSECUTOR: At 11.38 he's 159, at 12.29 he's 136? --- That's right.

PROSECUTOR: Does that tell you anything about whether he was likely to have consumed the amount of alcohol he claimed to have consumed later? --- Well, I think that goes against his claim of having consumed a large amount of whisky just before. I think that if he had consumed a large amount of whisky, as we've been discussing, his blood alcohol would have still be[en] increasing. Now, there's a certain uncertainty in that. One of the things we haven't talked about is the fact that, you know, these instruments all have a standard uncertainty in their reading or a certain tolerance in their reading. But even when you take into account what the - what the standard tolerance is of those instruments you still find that the blood alcohol level is not rising significantly in that time, so that - that tends to disprove his assertion, I guess, that he's consumed a large amount of spirits just beforehand.

PROSECUTOR: So what conclusion do you draw about that assertion, - - - ? ---- Well, I don't think he - - -

PROSECUTOR: Based on your calculations and those two test results that we've got? --- Well, based on those two test results I don't think that he could have consumed a large amount of whisky beforehand...

......you would have seen a big increase in the level. The fact that there was no big increase makes it so - well, I think impossible that he's consumed a large amount of whisky at the time."

102 The Crown prosecutor also stressed the matter in his final address to the jury as follows:

"That's why I submit that this whisky drinking scenario is inherent, apart from Odell's evidence, in addition to Odell's evidence, is inherently unlikely. No matter how nervous he [the applicant] was. No matter how upset he was. No one on his way to the police station, in those circumstances, with the belief that he's got about how he was at the time of the accident, would have filled himself up with whisky for completely innocent reasons. I submit you should reject that suggestion. He has made it to throw dust in the investigator's eye, and indeed ultimately in you, the jury's eyes. He's done it to mask the fact. He said it to mask the fact and the consequences of his drink driving.

But I would submit this too, even if you thought that he did have the whisky, even if you thought that he did, why was that done? If it was done, why was it done? That was done for the same reason, if it was done. To mask and hide the fact and consequences of his drink driving and his condition at the time of the accident to camouflage things. Either way it was done to camouflage the true position. If it was just said and it didn't happen, it's to camouflage his guilt, his drink driving, and if he did have the drink, it's also to camouflage the true situation, to confuse things, and I submit to you that on careful analysis you may think that 's why he didn't stop at the accident... In other words, he knew that the accident was substantially his fault. He knew if he'd stayed at the scene he'd be tested and he freaked out when his father said, 'We've got to go to the cops'...he knew that he was drink driving and was substantially responsible for this accident, and that's why he didn't stop."[102]

103 In those circumstances, the judge should have given an Edwards direction cautioning the jury that if they concluded that the applicant had lied about drinking whisky after the accident, they could not use that lie as evidence of consciousness of guilt unless satisfied that it revealed a knowledge of the offence of culpable driving or some aspect of it and that it was told because the applicant knew that the truth of the matter about which he lied would implicate him in the offence, (and that there may be reasons for telling a lie apart from realization of guilt and that if they accepted that a reason of that kind was the reason for telling the lie they could not use the lie as an admission).[103] The judge should also have cautioned the jury that, if they considered that the applicant drank the whisky in order to mask the fact that he had been drinking before the accident, they could not use that as evidence of guilt unless satisfied that his conduct in drinking the whisky revealed a knowledge of the offence of culpable driving or some aspect of it and that it was done to hide the truth because he knew that it would implicate him (and that there may be many reasons for that sort of conduct, including panic or alcohol dependence in times of crisis, and that the jury could not treat the drinking as an admission unless they were able to exclude those other possibilities).

104 It is remarkable and it is unfortunate that neither the prosecutor nor defence counsel reminded the judge of the need for directions of that kind. His Honour would doubtless have seen the need for them if he had been given the slightest degree of assistance. But, given that the prosecutor told the jury in terms that the lie was "to camouflage [the applicant's] guilt", it is not possible to treat as insignificant the risk that the jury may have regarded the lie as an admission of guilt. We accept that the judge's failure to give the Edwards direction was a miscarriage of justice, despite defence counsel's failure to take exception.

The proviso

105 It was, however, submitted for the Crown that, even if the failure to give the Edwards direction caused a miscarriage of justice, it was not a substantial miscarriage of justice and, consequently, that the proviso should be applied. The principles governing the application of the proviso have been recently restated by the High Court in Weiss v. The Queen[104]. Relevantly, the court said that the task of applying the proviso is to be undertaken in the same way that an appellate court decides whether a verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.[105] Thus, "the appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty ....". A little later, their Honours said:[106]

"...There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself...

...the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt."

106 It was submitted for the applicant, however, that it was not open, or not appropriate, for the Court to apply the proviso. Mr Priest, for the applicant, contended that it would be seldom, if ever, that the proviso can be properly applied where a jury were asked to infer guilt based on consciousness of guilt reasoning and the jury were misdirected. It was argued that the reason for this lay in the "peculiar method of reasoning to be employed by a jury in utilising evidence of consciousness of guilt." As we understand it, the "peculiarity" in the method of reasoning to which counsel referred arises from the special nature of the analysis that must be carried out by the jury when dealing with evidence that is said by the Crown to demonstrate an implied admission of guilt by the offender and from the devastating consequences to him or her if the jury accepted that the post offence conduct demonstrates consciousness of guilt. It was pointed out that in order to reach that conclusion the jury, if complying with an Edwards direction, would have had to have accepted that the conduct related to a material issue in the case, that it was not capable of being explained on an innocent basis and that, in the circumstances, it was pursued because of "a realisation of guilt and a fear of the truth."[107]

107 In that context counsel referred to what Callaway, J.A. said in R. v. Konstandopoulos.[108] That case predated Weiss and involved an inadequate direction to the jury on the issue of consciousness of guilt such as to amount to a miscarriage of justice but, nevertheless, this Court considered that the proviso should be applied to uphold the verdict. What Callaway, J.A. said in the passage of his reasons that was identified by Mr Priest, however, does not support the contention that it was there recognised that the proviso is seldom, if ever, applied where the jury is misdirected on the issue of consciousness of guilt. As his Honour pointed out, the question whether a misdirection or a non-direction amounts to a substantial miscarriage of justice "invites attention to whether there has been a fundamental irregularity or whether, even in the absence of such an irregularity, the appellant has been deprived of a [fair chance of acquittal]". His Honour went on to say, in effect, that inadequate instructions to a jury as to how they should handle the particular evidence that was said to point to consciousness of guilt amounts to a miscarriage of justice (but not necessarily to a "substantial miscarriage of justice").

108 Be that as is may, Mr Priest sought to distinguish Weiss from the present case on the basis that it was concerned with the situation where evidence was wrongly admitted. By contrast, it was said, here the jury were led into error because of a material non-direction and there was thus a risk that they engaged in an impermissible process of reasoning as to the circumstances in which the post-offence conduct could be relied on for the purpose of determining a case against the applicant. Mr Priest argued, essentially, that considerable care and judgment must be exercised before an appellate court can apply the proviso even if it seems, at first, that the evidence establishes the applicant's guilt beyond reasonable doubt. Counsel emphasised that the High Court recognised that there may be "perhaps many cases" where the "natural limitations" attendant upon appellate review would lead an appellate court to conclude that it cannot reach satisfaction beyond a reasonable doubt. These limitations no doubt include the difficulty in an appellate court assessing the credibility of a key witness "on papers". Their Honours in Weiss also accepted, said counsel, that there was no single description of what constitutes "no substantial miscarriage of justice" and that there may be cases where, even if the appellate court is persuaded on the evidence of the offender's guilt, it would nevertheless be appropriate to allow the appeal.

109 In that context, counsel highlighted the observations of Kirby, J. in his dissenting judgment in Darkan[109] as to the kind of matters that should be borne in mind when exercising judgment as to whether the proviso should be applied. More particularly:

(a) An accused charged with a serious offence is normally entitled to have the jury resolve contested questions of fact by the application of the applicable law correctly explained to them by the judge.[110]

(b) A legal mistake in peripheral matters may not touch the fundamental requirement of having a trial "according to law" but where the error involves a mistaken direction with respect to an essential ingredient of the offence and a misdescription to the jury of the content of that ingredient, a real question is presented as to whether the outcome then truly answers to a trial "according to law".[111]

(c) The proviso is to be understood against the background of the fundamental assumption that high standards of lawfulness are observed in the conduct of criminal trials.[112]

(d) The appellate court, deciding the proviso question, does so "in the context of a legal system that observes high standards of compliance with the law; is protective against miscarriages of justice and wrongful convictions; and ordinarily applies the rigorous criterion for proof of criminal guilt."[113]

(e) Where there is a serious mistake of law, there is a strong reason of principle why such a mistake should ordinarily be marked by the provision of relief and an order for a new trial.[114]

(f) If the jury is misled as to the essential function and provided with an incorrect statement of the applicable legal components of the offence, the postulate of a trial according to law is not fulfilled.[115]

We note for completeness that Kirby, J. expressed his concerns about the application of the proviso in the context where it had not been applied in that case by the intermediate court of appeal - which dismissed the appeal - so that its application was considered only for the first time when the matter came before the High Court which, his Honour said, did not have "the benefit of assistance of the intermediate court's analysis of the evidence".[116] Moreover, in that case the credibility of an important Crown witness was in issue. None of these matters arises here.

110 It was submitted for the applicant that, having regard to the above principles and the failure by his Honour to give the jury an Edwards direction, and bearing in mind the significance of the evidence as to the applicant's post offence conduct, the "limitations" inherent in an appellate court reviewing the evidence wholly or substantially on the record mean that this Court should not conclude that it can reach satisfaction beyond reasonable doubt as to the applicant's guilt. Alternatively, it was claimed, even if we were persuaded on the evidence of the applicant's guilt, we should nevertheless allow the appeal because, given the significance of the consciousness of guilt evidence and that the jury were "misled" as to the necessary process of reasoning in relation to it, his Honour's error resulted in a trial that was "tantamount" to one that was not conducted "according to law" thereby producing a "substantial miscarriage of justice". It was said that the error was of such seriousness that it "should ... be marked by the provision of relief and an order for a new trial".[117]

111 We do not accept Mr Priest's submission that it would only be in a rare case that it would be appropriate for the appellate court to apply the proviso in a case where the Crown relied on consciousness of guilt evidence and the trial judge has misdirected the jury on how they should deal with it. We think that it is one thing to argue that, in the particular circumstances of a case, where the Crown relies on consciousness of guilt evidence and there has been a misdirection on the issue, the proviso cannot be properly applied because, say, of the operation of the "natural limitations" of which the High Court spoke in Weiss. Thus, for example, where the Crown case on consciousness of guilt relied heavily on the evidence of a witness whose credibility was in issue and the resolution of that question depended, to a material extent, on seeing and hearing him or her in the witness box, it may be appropriate for the proviso to be applied.[118] Similarly, there may be consciousness of guilt cases where the insufficiency in the direction to the jury was so significant that it can be said that the offender did not receive a trial "according to law". But it is another thing altogether to contend, as was done here for the applicant, that a misdirection as to the use of consciousness of guilt evidence generally amounts to a "substantial miscarriage of justice" such as to preclude the application of the proviso. We consider that the underlying basis for such a submission is flawed.

112 As we have already explained, evidence of post offence conduct forms part of the facts and circumstances from which the jury is asked by the Crown to draw the inference of guilt of the offender. The reason why a direction along the lines stated in Edwards is necessary, is to avoid the risk of a miscarriage of justice occasioned by the jury impermissibly jumping to the conclusion that merely because, for example, the offender lied about an aspect of the case, he or she necessarily did so because of a recognition of guilt and a fear of the truth. But otherwise the treatment of consciousness of guilt evidence is relevantly no different from that of other circumstantial evidence in that the jury may be asked to infer from it the conclusion for which the Crown contends. A failure to direct sufficiently on consciousness of guilt will often, if not usually, result in a miscarriage of justice, but it will not amount to a "substantial miscarriage of justice" just because the misdirection related to consciousness of guilt evidence. The nature of the case made against an appellant may be such that the appellate court will be well placed to make its own evaluation of the evidence and a determination as to the guilt of the appellant. This is often likely to be so where the Crown relies principally upon circumstantial evidence. Furthermore, the appellate court may also be in as good a position as the jury to assess the post-offence conduct in conjunction with the rest of the circumstantial evidence, to determine whether it gives rise to the inference that the post offence conduct exhibited consciousness of guilt by the offender and whether, in the circumstances, he or she is guilty of the offence in question. Thus, subject to the qualifications stated in Weiss, and the necessity to bear in mind the matters of principle that were articulated by Kirby, J. in Darkan to which reference has been made, we consider that, ordinarily, the mere fact that the misdirection relates to consciousness of guilt evidence does not mean that the resulting miscarriage of justice must be treated as "substantial miscarriage of justice" such as to preclude the application of the proviso.

113 In the present case the resolution of such issues of credit as may have arisen relating to the applicant's claims concerning the drinking of the whisky did not depend on the court seeing and hearing him or any other witness, such as Dr Odell, give evidence. In our view, there were no other "natural limitations" that would preclude the proper application of the proviso. In the circumstances, it is appropriate for us to analyse the whole of the evidence for the purpose of determining whether the applicant was proved guilty of the offence in question. Before proceeding to analyse the material, we note two matters for completeness. The first is that, although the applicant did not contend before us in terms that the totality of the evidence cannot properly lead to the conclusion that the applicant was guilty of culpable driving, we must, as was made plain in Weiss, nevertheless review the whole of the evidence for ourselves for the purpose of determining the ultimate issue. The second matter is that, although it was said in Weiss that the jury's verdict is one of the matters to be taken into account in determining whether or not the offender was proved guilty of the offence beyond reasonable doubt, we give little weight to the verdict here because, given the absence of the Edwards direction, the verdict may have been affected by impermissible reasoning.

114 We have earlier identified the context in which we are to undertake our task and we now proceed to analyse the relevant evidence, possibly in more detail than is strictly necessary, to make the determination required of us.

The evidence given at trial

115 Zoe Ariel Taylor gave evidence that in October 2003 she was living with the applicant in a flat in East St Kilda near Chapel Street and that he had recently begun work in a dairy. She owned a dark blue Honda City motor car and the applicant sometimes used it. She said that on Saturday 11 October 2003 she left the flat relatively early to visit their friend, Felix Telford, who lived in Hotham Street, St Kilda. She said that they were all going to the races at Caulfield that day and she wanted to wake up their friends.

116 Ms Taylor said that she later returned to the flat to collect the applicant and that the applicant then drove her back to Hotham Street to pick up their friends Felix, Hayley, and Frank, and then another four blocks down Hotham Street to pick up another friend, Mark Carroll. It took two trips to take these people, as well as another friend Clare, to Caulfield Racecourse.

117 Ms Taylor said that she was in the first group to arrive with Felix and Mark, before lunch, and that the applicant arrived about an hour later with the others. He telephoned her and she met him at the main entrance. For the rest of the afternoon they all watched the races and placed bets while drinking beer and champagne.

118 Ms Taylor said that they stayed till the last race at about 5.00 p.m., by which time her friend Hayley was quite drunk, although she said that she did not notice anyone else being "overly drunk". They walked to the car but then remembered that they had left the keys with Clare. They telephoned her and got the keys. The applicant then drove them either to Felix's place or their place.

119 Ms Taylor said that they later went out to dinner at La Porchetta Restaurant in Acland Street. She said that they continued to drink, wine and some shots. Afterwards, she went home to the applicant's house with Hayley in her car, leaving the applicant with his friends, Mark Frank and Felix, to walk home. They arrived home later.

120 She said that at some stage that evening the applicant went out again in the car and he did not come back for some time. He later telephoned her on his mobile phone in the early hours of the morning and told her that he had been in an accident and that a pedestrian had been killed. She said that she walked up Inkerman Street to Felix's house. She passed an accident site near the corner of Chapel Street and Inkerman Street. There was no car there. She said that when the applicant later returned home he was extremely upset. He told her that he had left the scene of the accident rather than stop, because he was in a panic and had gone to his father's house.

121 Felix William Telford, a carpenter, gave evidence that at the relevant time he lived in Hotham Street, St Kilda about 15 metres from Inkerman Street. He was a friend of the applicant. He said that the applicant and Zoe Taylor had come to his house on the morning of 11 October 2003 to collect him to take him to the races. He recalled that it took several trips to get everyone there. They gathered near the rail and all went and got drinks and placed bets. He said that he drank beer and champagne and that the applicant did too. He said that they were all "pretty happy" having a good time, coming and going from the spot where they gathered near the rail on the track. He said that he thought that he might have gone home in a taxi and that he later walked down to the La Porchetta Restaurant in Acland Street, St Kilda. He said that they ate food and that he had a beer and a shot as well. They left around 11.00 p.m. He walked back to the applicant's house with the applicant, Mark and Frank. Zoe and Hayley took the car. It took about 15 minutes. He said that they lost Frank on the way and so the applicant went to pick him up. Frank then came back and told them that the applicant wanted a cigarette. Telford said that he did not go outside but that he could hear the engine running and that someone took a cigarette out to the applicant. The applicant did not come back inside again. Hayley went downstairs to talk to the applicant because she was wondering why the applicant had not come back in himself to get a cigarette. He then heard the car drive off and he did not see the applicant again after that. About an hour later, when the applicant had still not come back, he became worried and decided to walk home. He was concerned because he knew the applicant had been drinking and he was in the car. On the way home along Inkerman Street, he saw an ambulance and someone lying on the street but he did not recognise the person. He arrived home after midnight. He said that he was aware that the applicant had a new job doing milk deliveries and he believed that he started work at about 3.00 a.m.

122 Mark Allen Carroll was a chef who in October 2003 was working at the Inkerman Hotel. He said that he got to know the applicant and his girlfriend, Zoe, and Felix Telford, while he was working there. He said that the night before the races he had drinks with Felix and Frank, and stayed the night at Felix's place, and that Zoe picked them up in the morning and took them to Caulfield Racecourse. They gathered at the start/finish line. They bet, had drinks and watched the races. He said that he thought that he drank champagne and beer and that he saw the applicant drinking alcohol. At the end of the day they went to the La Porchetta Restaurant for something to eat but he said that he did not remember much because he was "pretty consumed with alcohol at that stage". He said that he remembered being at Fiona Court after leaving La Porchetta, but he could not remember how he got there, and that his next memory was walking from Fiona Court to Hotham Street to Felix's house. He saw an ambulance and someone out front of the service station. After that he went back to the applicant's place for a while before returning to Felix's house in Hotham Street.

123 Later, after Mr Carroll was declared to be a hostile witness, he agreed that he had said in his statement to the police that the applicant was tipsy by the time they left La Porchetta and that he should not have been driving and that he had said that "I thought that he had had enough to drink, that he shouldn't have been driving" but that he was in no condition to judge whatever anyone else's condition was.

124 Tegan Duncan worked as a waitress in Fitzroy Street. On Saturday 11 October 2003 she finished work at about 10.00 p.m. and had a beer and then at about 11.00 p.m. was driven home by one of the people with whom she worked, Chris Glover. They were travelling along Inkerman Street in an old white Nissan Skyline east towards St Kilda East at about 50 kph and they slowed down well before the traffic lights at the intersection with Chapel Street as they turned amber. She looked out of the right hand side window as she was talking to Chris and saw a man walk out of the petrol station on the corner. He was walking down one of the driveway exits and she said that she just saw him take a couple of steps onto the road and then pick up into "a lighter sort of jog". She said that he just picked up the pace a bit and took just a couple more steps and then a car hit him. It was coming from the opposite direction travelling on the other side of the road. She momentarily looked away and yelled that someone had been hit and then Chris did a u-turn short of the traffic lights and pulled up in front of the man, and that is when she saw him lying face down on the road in front of the petrol station. She ran to the petrol station where someone was calling an ambulance. The car that hit the man was a dark colour with a silver badge on the back. It continued on its way. It did not stop. It did not slow down or speed up at all. It appeared to be going fast. She believed it was going well over the speed limit which at that point was 60 kph. In cross-examination she accepted that it was possible that it was not exceeding the speed limit.

125 Christopher Charles Glover was a waiter and a student. He confirmed that he had driven Tegan Duncan home on the night of Saturday 11 October 2003. He said he was doing about 40 kph as he approached the intersection and when he saw the lights change to amber he slowed down even more. He said that Tegan was talking to him and then that she screamed that someone has been hit. He said that he heard a thump and a sound like breaking glass and lots of screaming from Tegan. He said that he checked the traffic on the Chapel Street side and did a u-turn through the intersection and came around to park on Inkerman Street facing west. He said that he did not see the accident but saw a man lying in the street and pulled up behind him so that no one else could hit him. He was about a metre and a half out from the kerb in the traffic lane. He called out for someone to dial 000 and talked to the man on the ground. He felt for his pulse which was light and kept fading in and out. The roads were dry and visibility was good.

126 Jason Mathew Scheppers, a cartographer, gave evidence that he was on his way home on Saturday night 11 October 2003 after being out for the evening. On the way home he stopped at the Mobil service station on the corner of Inkerman Street and Chapel Street, St Kilda to buy some LP gas for his car. While using the pump or finishing using the pump, he heard the sound of a car accelerating enough to make him look up. It was the sound of a revving engine, more than normal. The car he saw was moving fast. It was a small dark car coming from the east along Inkerman Street. He first saw it as it was entering the intersection. He said he saw what he took to be a white Mitsubishi travelling in the opposite direction. They crossed in his line of vision. He heard quite a loud crash, thump, sound of breaking glass and he presumed that the two cars had hit each other. He saw something fly onto the road, some dark object. It came around from the right side of the dark car around the back of the car, which continued on. The white car had done a u-turn. He ran towards it but they appeared to be fine. There was no damage to the car, which confused him, and then he looked to his left and saw a man on the road about 5 metres from the exit ramp from the service station.

127 Adrian Ricks, a performer, gave evidence that he was visiting a friend, Sarah, in a block of flats in Inkerman Street on the night of 11 October 2003. They were sitting on the balcony which overlooked Inkerman Street having a cigarette. As he turned to go inside to get ready to go out, he heard a loud thud - "quite deafening and that's what made me actually...it made me jerk" - and looked onto the street. He said that he saw a car travelling towards St Kilda coming from Chapel Street with a guy on the bonnet of the car and then he proceeded to roll off the car and onto the ground. The car was in the right hand lane of Inkerman Street going towards St Kilda with its wheels on the side where the lane starts turning into a right turn lane. The car did not stop. He heard a rev and it kept speeding off "and it didn't brake or anything". He had a feeling that the speed of the car was a bit over the speed limit.

128 Andrew Justin Potger, a cook with McDonald's Restaurants, gave evidence that in October 2003 he was living in a block of apartments in Inkerman Street, St Kilda. The nearest crossroad was Chapel Street. On the night of 11 October 2003 he was at home watching DVD's when he heard a loud noise like two cars having an accident. He ran out into the street to see if he could be of assistance. He did not see any vehicles but saw a person lying on the road and another person running towards him. He attempted to find a pulse and it was very faint at the time. Then in due course the ambulance and police arrived. It was around 11.00 o'clock.

129 Anthony Joseph Ciantar, the applicant's father, gave evidence that his son arrived at his unit at about 11.00 p.m. on Saturday 11 October 2003 in a distressed state. He looked to be all at sea. He was having trouble getting his words out and the witness said that he asked the applicant if there had been an accident and that the applicant nodded his head. The applicant said: "I think I've hit someone" or "hit something" and "what am I going to do? What do I do dad? What do we do now?" The witness told the applicant that he had to go to the police and front up to what had happened, and the witness himself telephoned the police within five minutes of the applicant's arrival, after extracting the details of the accident. He then got dressed - it took him two to three minutes - and they went straight to the St Kilda police station, which took another five minutes. That would have been within about 15 or 20 minutes of the applicant first arriving. They arrived there at about 11.25 to 11.30 p.m. He said that he told Senior Constable Larkin that his son had had an accident. He saw Senior Constable Larkin administer the preliminary breath test with what he described as a little hand held device. He rang a solicitor and his daughter. Later his daughter came to the police station to get the keys to his flat. He stayed at the police station with his son. Before the final interview with his son the witness went with police to his flat in the early hours of the morning and they executed a search warrant. The police took a bottle of Black Douglas from the flat. He had not seen his son consume any whisky. But he said that he believed that his son had a drink of whisky while the witness was in the toilet. He noticed a smell of whisky then. He said that the applicant had told him he needed a drink to calm down. The bottle had been about half full, probably not even that, when it was in the pantry_._ The lid to the bottle was in a box on the pantry floor where the bottle was usually kept. When he left for the police station the bottle was not in the pantry. He said that he told his son he was a "dickhead" for drinking the whisky.

130 Aimee Ciantar, the applicant's sister, gave evidence that she spoke to her father just before midnight. She said that he telephoned her while she was at her friend's house in Newport. She had gone there by train and intended either to stay the night with her friend or to stay at her father's house. He telephoned her again later to tell her that he had not left the keys out for her and to go to the police station to collect the keys. He told her then that her brother had hit somebody, but she did not know what had happened to that person. She said that she caught a taxi to the police station. She did not have enough money on her to pay for it and so her father gave her some money. She said that the police were already at her father's flat in Elwood when she arrived there. She stayed alone in the flat until some other police arrived to search the place. She said that she moved the bottle of whisky from the table to the bench because there was no lid on it and there were kittens in the house. It looked like it should be thrown out as there was only a tiny bit left in it.

131 Senior Constable Stephen Hillman gave evidence that he was on mobile regional duties on the night of 11 October 2003. He received a call while he was on Kings Way. He said that it was about 11.12 p.m. when he arrived at the scene. The ambulances were already there. He and his partner Senior Constable Ingram preserved the scene and put up a road block. Other officers arrived just after 11.30 p.m.

132 Senior Constable Kate Marten gave evidence that she arrived at the scene at 11.20 p.m. She said that she did not see any skid marks. She spoke with potential witnesses. At 11.40 p.m. she was instructed to attend in Glenhuntly Road to view a vehicle at a block of flats. She said that she and a Constable Barter arrived at the premises at 11.55 p.m. and located a blue Honda registration number CHS-966 at the rear of the driveway in the visitor's car parking bay. There appeared to her to be blood and flesh matter in the middle of the windscreen near the top. Senior Constable Marten said that at about 1.40 a.m. the applicant's sister, Aimee, arrived at the flat. She said she had lost her keys and was staying at her father's house for the evening. There was no-one at her father's place. They took her inside and remained outside the flats until Sergeants Cripps and Shiell arrived from the Major Collision Unit.

133 Constable Walter Gerrard Larkin gave evidence that he was on duty at the St Kilda police station on the night of 11 October 2003. He said that at 11.15 p.m. he received a call from Tony Ciantar, the applicant's father, who told him that his son had just come around to his place and that his son had been involved in some sort of collision just prior to that. He asked a few questions then told him to bring his son straight to the police station. They arrived at 11.35 p.m. He noticed a small amount of blood on the applicant's cheek. He was quite upset, very agitated. At 11.38 p.m. he conducted a preliminary breath test with the Lion Alcolmeter, type SD400PA, serial number 040414D. The reading he obtained was 0.159%.

134 Acting Sergeant Stuart Keighley gave evidence that he conducted a formal breathalyser test at 12.29 p.m. The reading at that time was 0.136%.

135 Acting Senior Sergeant Paul Andrew Cripps was at relevant times attached to the Brunswick Major Collision Unit and on the night of 11 October 2003 was informed of a fatal pedestrian collision in Inkerman Street, St Kilda. After arriving at the St Kilda Police Station he observed the applicant and his father in the interview room after the preliminary breathalyser test had been conducted. When he entered the room, he smelt an overpowering smell of intoxicating liquor. He conducted an interview of the applicant in company with Sergeant Keighley. The interview was interrupted for the formal breath test. The reading was 0.136%. He then attended at the applicant's father's home to execute a search warrant. He saw the car which the applicant had been driving and noted damage to various parts of the car. He observed blood on the windscreen and a shattered part consistent with the impact on the deceased's head and took a number of photographs of the car in its damaged condition. The applicant's father later took him into the premises, and he noticed a bottle of Black Douglas whisky on the bench. It only had a centimetre in the bottom of the bottle. It did not have a cap on it. The applicant's father found the lid in the bottom of the pantry and gave it to him. At 6.25 a.m. the same morning, he took part in a further interview with the applicant and Senior Constable Collins.

136 Senior Constable Gerard Maddon gave evidence that he attended the scene at about 11.30 p.m. on the night of 11 October 2003. He did not locate any tyre or skid marks indicative of an attempt to evade or brake. A point was marked on the road where there was a fan of debris in a westerly direction. This was a basis for concluding that the point of impact had occurred at that point. He took measurements with the geodometer and later made a scale plan.

137 The applicant's car was subsequently mechanically examined and was found not to have any mechanical faults which may have caused the collision.

138 Senior Constable Glen Stewart Urquhart, of the Major Collision Unit, was a member of the Society of Automotive Engineers of Australasia and a member of the Australasian and South Pacific Association of Collision Investigations. He had completed the course in technical accident investigation and reconstruction conducted by the Society of Automotive Engineers and the Victoria Police Major Collision Investigation Unit course. He gave evidence that, based upon his observations and calculations, he estimated the distance between the approximate point of impact and the rest position as being in the vicinity of 25 metres and the speed range was between 55 kph and 68 kph. He said that the evidence from dealing with many pedestrian collisions within his unit and also through Monash University Accident Research Centre was that few pedestrians survive an impact with a car at speeds greater than 50 kph. The point of impact on the vehicle was on the front passenger side of the vehicle. There was damage also on the front passenger side quarter panel and to the windscreen.

139 In cross-examination it was put to him that the deceased may have darted out from behind a parked car and in effect left the applicant with no opportunity to avoid him. In re-examination he said that he had undertaken an analysis, on the basis of information that when the applicant first saw the deceased he was walking and that the deceased then sped up into a jog, and that 85 per cent of people unaffected by fatigue, drugs or alcohol will respond within one and a half seconds to a perceived threat of collision. Accordingly, he calculated that whatever the speed at which the applicant was travelling, be it 55 kph or 68 kph, the accident would not have happened if the applicant had been unaffected by alcohol, fatigue or drugs.

140 Constable Trevor John Collins, the informant, also attached to the Major Collision Investigation Unit, gave evidence that he observed the injuries on the deceased. They were significant. The intersection was well lit and the speed limit was 60 kph. The fingerprints taken from the whisky bottle were not those of the applicant but of his sister. The blood sample taken from the deceased was tested and revealed a blood alcohol reading of 0.26%.

141 We have already referred to the evidence given by Mr Ducza and Dr Morris Odell and there is no need to repeat it.

Application of the proviso

142 As we have said, we do not consider that the natural limitations faced by this court in the circumstances of this case are such as to preclude us from coming to the view that the applicant was proved beyond reasonable doubt to be guilty of the offence of culpable driving on which the jury returned its verdict of guilty. The applicant did not give evidence, and hence this Court is substantially in as good a position as the jury to assess the credibility of the answers that he gave to police in his record of interview. As has been noted, the assessment of the expert evidence of Mr Ducza and Mr Odell would not be greatly assisted by seeing them in the witness box. There was no attack made upon their credit or upon the credit of any of the other witnesses, except for Mr Carroll, and, as we have noted, that resulted in him agreeing with the contents of his statement.

143 We are also satisfied that there was not such a denial of procedural fairness at trial that a new trial should be had. It is plain enough, as we have earlier accepted, that it was necessary for the judge to give the jury the Edwards directions. The judge's failure in that regard gave rise to the risk of miscarriage of justice because the jury may have proceeded improperly on the basis that merely because the applicant lied about drinking whisky after the accident, or alternatively drank whisky after the accident, he was conscious of his guilt of the offence of culpable driving with which he was charged. We do not need to consider whether, as was suggested, it is arguable that if we were still operating under "this jury test", which was disapproved of in Weiss, that may have meant that the proviso could not be applied Strictly, it would not be impermissible for us to consider, in the context of our analysis of the whole of the evidence and bearing in mind what was said in Edwards, whether the applicant's lies about the whisky or, the drinking of it, disclosed a consciousness of guilt on his part. But we consider that, in the circumstances, it would be appropriate to assume favourably to the applicant that the lie or the fact of drinking the whisky was not sufficient to establish consciousness of guilt.

144 Based upon our assessment of the whole of the record, we are satisfied of the following:

1. Having regard in particular to the evidence of Mr Ducza, Dr Odell, Constable Larkin and Sergeant Keighley, and despite the evidence of Anthony Ciantar, Aimee Ciantar and Acting Senior Sergeant Cripps, we are satisfied beyond reasonable doubt that the applicant lied when he told police that he had drunk whisky after the accident. We are strengthened in that view by the fact that the jury evidently came to the same conclusion.

2. Having regard in particular to the same evidence as is referred to in paragraph (1), we are satisfied beyond reasonable doubt that the applicant did not drink a substantial quantity of spirits after the collision, and that in the result his blood alcohol concentration at the time of the collision was not less than 0.128%. We note that the the jury evidently came to the same conclusion.

3. Having regard in particular to the answers given by the applicant in his record of interview and the evidence of Tegan Duncan, Christopher Glover, Jason Scheppers, Adrian Ricks, Andrew Potger, and Senior Constable Kate Marten and the opinion of Senior Constable Glen Urquhart, we are satisfied beyond reasonable doubt that at the time of the collision the applicant was travelling at a speed of not less than 55 kph and that he did not brake before the point of impact. We are unable to discern from the jury's verdict whether the jury came to a similar conclusion.

4. Having regard in particular to the opinions of Senior Constable Glen Urquhart and Dr Morris Odell, we are satisfied beyond reasonable doubt that the applicant was driving under the influence of alcohol to such an extent as to be unable properly to control his motor car. We note that the jury evidently came to the same conclusion. We place no weight on that, however, because of the possibility that the jury's conclusion was affected by a view that the applicant lied to police as a result of consciousness of guilt and because we are not satisfied beyond reasonable doubt that the applicant's lie to police was the result of consciousness of guilt or that the applicant's conduct in leaving the scene of the collision was the result of consciousness of guilt.

145 Approaching the matter on that basis, upon our own independent assessment of the evidence and making such allowance as we think to be due for the natural limitations that exist in this case in proceeding wholly or substantially on the record, we are satisfied that the applicant was at trial proved beyond reasonable doubt to be guilty of the offence of culpable driving on which the jury returned its verdict of guilty.

146 It follows in our view that the judge's failure to give the Edwards direction did not result in a substantial miscarriage of justice and, therefore, that the proviso should be applied.

Ground 4: Non-direction on the presumption of innocence

147 Ground 4 of appeal against conviction is that the judge erred in failing to direct the jury on the presumption of innocence, despite a request by defence counsel that he do so.

148 With respect we think that the criticism is well founded. It is difficult to understand why any trial judge would not give a specific direction on the presumption of innocence, and even less in circumstances where defence counsel has asked for it. It is one of the inexorable directions which should be given as a matter of course.

149 That said, however, in this case we do not think that the judge's failure to give the direction could have made any difference. His Honour specifically directed the jury on the burden and standard of proof in a fashion that made clear to them that they could not convict unless they were satisfied by the evidence adduced by the Crown to a standard beyond reasonable doubt of the elements of the offence of culpable driving as the judge outlined them.[119]

Ground 5: Errors surrounding the taking of verdicts

150 The applicant's fifth ground of appeal centres on the fact that the judge permitted the jury to deliver a second verdict, of guilty, after the foreman had announced a verdict of not guilty. It is contended that the judge, having accepted a verdict of not guilty, could not then go behind that verdict or that, if his Honour did not accept the verdict of not guilty, he should have discharged the jury because they had misunderstood the way in which they were to approach their task.

151 Before dealing with the principles which govern the matter, it is necessary to say something concerning the facts. Not long before the jury delivered their first verdict, the foreman sought a redirection on the possible bases of culpable driving with which the applicant was charged, namely, on the basis of gross negligence under s.318(2)(b) or driving under the influence of alcohol under s.318(2)(c). As best can be told from the transcript, the jury were having difficulty with the idea that, in order to convict, they had to be agreed upon the basis of guilt as well as the fact of guilt and that it was not sufficient for some members of the jury to be satisfied of guilt on one basis and for other members of the jury to be satisfied of guilt on the other basis. After considering the problem with counsel, the judge recalled the jury and gave them the following further re-direction:

"Thankyou, Mr Foreman ladies and gentlemen, I understand the difficulty is much the same as you've indicated earlier. If I could just go over a couple of matters for you. The Crown must prove its case to the satisfaction of the whole jury upon one basis or the other. You could [not] render a verdict of guilty upon the basis that some of you were satisfied of gross negligence and other were satisfied of driving whilst under the influence to the forbidden extent. And it seems to me you've understood this. You must all be agreed on one form of the offence, either gross negligence or driving under the influence. Now if the Crown has failed to prove to your satisfaction beyond reasonable doubt any one of the elements of the charge upon the first or second basis you will turn to consider the other basis upon which the charge is laid. If it has failed to prove any one of the elements of the charge, as I have defined it upon that basis, you will find the accused not guilty of the charge of culpable driving."

152 Eight minutes later, the jury returned and, when asked whether they found the applicant guilty or not guilty of culpable driving, the foreman answered "not guilty". The judge thereupon began to thank the jury for their service but, even before his Honour could complete his thanks, the foreman interrupted:

FOREMAN: Sorry, your Honour, I think there has been a misunderstanding.

HIS HONOUR: Yes?

FOREMAN: We understood that there were two elements to the charge of culpable driving and that we were to make a decision on either Section A or Section B, and we are unanimous in our view of one of those sections.

HIS HONOUR: Would you retire to your jury room, please.

The jury retired at 3.24 p.m.

153 Thereafter until 4.17 p.m., the judge heard preliminary argument as to whether it was open to him to take another verdict, and at 4.17 p.m. the judge sent the jury home for the weekend after they had taken a separation oath.

154 On the following Monday morning, the judge heard further argument in the absence of the jury until 11.41 a.m. at which time the judge brought the jury back into court and told them that he had been having a lengthy discussion with counsel and that he was likely to call the jury back again at about 12.00 noon. The judge then delivered a ruling, in the absence of the jury, in which he stated that he was clear that there had been a misunderstanding of his directions as to the manner of taking a verdict, and that it was evident from the comment of the foreman that the jury had considered that they were required to bring in a separate verdict as to each basis of culpable driving. His Honour then made reference to a number of the authorities which have considered the question of whether it is open to allow a jury to correct a mistake, and concluded on the basis of those authorities that the proper course was to redirect the jury as to their duties and ask them further to consider their verdict.

155 At that point, the judge brought the jury back into court again and re-directed them as follows:

"Thank you, Mr Foreman and ladies and gentlemen. It's unfortunate that you were required to be here today, what would've been part of , for some of you a long weekend,[120] I guess. What has occurred is understandable and highly unusual. I appreciate the potential for your misunderstanding as to how you were to announce your verdict.

I should've made my direction to you clearer. I'm about to ask you to again retire and consider your verdict. What must be made clear is that the court does not require your announced verdict as to each of the two bases of culpable driving on which the accused man has presented.

The court requires one verdict only, as to whether the accused is guilty or not guilty of culpable driving. It may be if your verdict is guilty - be guilty on either basis as long as you, the jury, are unanimous as to that basis.

The court does not require you to say on what basis you arrive at your verdict. If you are not satisfied, beyond reasonable doubt, the Crown has proved all the element[s] of both bases, of culpable driving, your verdict would be not guilty.

Again your verdict must be unanimous, that neither basis for culpable driving has been proved, beyond reasonable doubt, to your satisfaction.

So when asked by my associate 'Do you find the accused guilty or not guilty of culpable driving?' you, Mr Foreman, will announce 'guilty' or 'not guilty' in accordance with the jury's decision. If you find the accused guilty on one or other basis your verdict will be guilty.

If you find the accused not guilty on each basis your verdict will be not guilty. It is not necessary for you to go further than announce a verdict of guilty or not guilty. Now it's my fault, I should've perhaps put it in that... simpler way earlier on.

But if you now retire, Mr Foreman, and ladies and gentlemen and consider your verdict, and again if you have any queries on anything of that nature please just let me know. Yes, thank you."

The jury retired at 12.32 p.m. and 12.44 p.m. returned and delivered a verdict of guilty of culpable driving.

156 A good deal has been written about the circumstances in which a judge may or may not allow a jury to correct a mistake. But for present purposes the principles are tolerably clear. As it was put by the English Court of Appeal in Paul Andrews,[121] and indeed as one would hope, a mistake in a verdict may be corrected provided it causes no injustice. Thus:

"..where the jury seeks to alter a verdict which has been pronounced by the foreman, the judge has a discretion whether to allow the alteration to be made. In exercising that discretion he will, it goes without saying, take into account all the circumstance of the case; in particular the important considerations will be the length of time which has elapsed between the original verdict and the moment when the jury express their wish to alter it, the probable reason for the initial mistake, the necessity to ensure that justice is done not only to the defendant but also to the prosecution. The fact that the defendant has been discharged from custody is one of the factors but is not necessarily fatal to the judge's discretion to alter the verdict to one of guilty. If the jury have been discharged and a fortiori if they have dispersed, it might well be impossible for the judge to allow the verdict to be changed. That however it is unnecessary to decide upon the instant appeal. Clearly if there were any question of the jury's verdict being altered as a result of anything they heard after returning their initial verdict, then there could be no question of allowing a fresh verdict to be returned."

157 Similarly, in R. v. Loumoli[122] the New Zealand Court of Appeal after an extensive survey of the authorities concluded that, although a jury once discharged cannot be recalled and sent back to reconsider its verdict, it may be reconvened to correct an error made in the conveyance or recording of the verdict.

158 Among the authorities to which the New Zealand Court of Appeal referred was the decision of the Full Court of the South Australian Supreme Court in R. v. Cefia.[123] In that case the jury foreman announced a verdict of not guilty and the jury were discharged. Some of the members of the jury left the courtroom although they were still within the court building. As the judge was leaving the bench, an officer of the court called out that there had been a mistake. The judge thus called the jury back into court whereupon it became clear that the verdict which they had reached was a verdict of guilty and that the foreman had made a mistake. The judge entered a verdict of guilty and the Full Court upheld his decision. In a joint judgement in which Hogarth, J. agreed, King, C.J. and Sangster, J. said:

"We are not called upon to decide whether there is a time limit, or a limit by reference to the stage of the proceeding, after which a correction may not be made. It is sufficient for us to decide as we do, that in the case before us the correction was still available when it was made. We note that in some of the authorities already referred to where a correction was made, the erroneous statement by the foreman had been accepted as the verdict of the jury, the accused had been released, a note had been made of the 'verdict', and the jury had been discharged but had not dispersed. In other of the authorities where the correction was not made but a new trial was ordered more time had elapsed and, in particular, the jury had dispersed. It may be - although we do not decide - that there is a distinction as to the time at which the erroneous statement of the verdict can be corrected by the substitution of the actual verdict and the time at which the false 'verdict' may be expunged and a new trial ordered."[124]

159 The Western Australian case of Biggs v. D.P.P.[125] is an example of the latter kind. In that case, the jury forewoman had announced a verdict of not guilty on a number of counts and the trial judge entered an acquittal. Within a few minutes of the court being adjourned, the court was reconvened and the jury returned to the courtroom and the forewoman explained in substance that the jury had not been unanimous in respect of each verdict of not guilty nor had 10 or more of them agreed with each such verdict and that in fact the jury was divided in respect of each such verdict. On a later date, after submissions, the trial judge exercised what she took to be the discretion available to her to set aside the verdicts of not guilty, so that in effect a new trial could be had. The Full Court upheld her Honour's decision. As Heenan, J. said:

"In the present case, plainly the foreman made a mistake in communicating to the court the result of the jury's deliberations. Before they dispersed, apparently with no outside influence, she and her fellow jurors made known to the trial judge their wish to rectify the mistake. As her Honour said, it was not a matter of taking evidence. All 12 of the jury then faced the accused man and told him in effect that they had not reached a verdict in relation to any of the six charges in question. They had been discharged in that the judge had told them that they were 'free to go' , and they had walked out of the courtroom, but they were not functus officio. In truth they were continuing to perform their function as jurors by correcting a mistake, as Pollock CB said in Voddens' case, within a reasonable time and on the very spot on which it was made."[126]

160 Plainly enough, in this case there was a mistake. To adopt and adapt the observations of Heenan, J. in Briggs v. D.P.P., the twelve jurors faced the applicant and told him that the foreman had made a mistake in stating that they were all of the view that the applicant was not guilty of culpable driving. But the length of time which elapsed before that emerged was negligible. As already noticed, the trial judge had not even got to the end of his thanks to the jury before the foreman interrupted and stated that there had been a mistake. The jury had not been discharged. And the applicant was still in custody. There was therefore every reason why the judge should have exercised his discretion to enable the mistake to be corrected.

161 It is submitted on behalf of the applicant that while it may have been open to enable the jury to correct the mistake immediately, what in fact happened was that the jury were given the opportunity for further consideration and further directions before they finally announced a verdict of guilty of culpable driving on the following Monday. In fact that is so. It would have been preferable if the judge had taken the second verdict immediately even if only de bene esse to abide his ruling after submissions. But even allowing that the jury were given a further opportunity to consider the matter, we fail to see that it matters. The jury were not discharged. They were released under the security of a separation oath over the weekend and were sequestered again on the Monday morning. The only further direction given to them was as to the elements of which they needed to be satisfied in order to convict. And the amount of time involved in further deliberations was less than a day. It was plain from what the foreman said to the judge that they were not agreed that applicant was not guilty of culpable driving. It follows that they were not functus officio but still bound to complete their task of deciding whether the applicant was guilty or not guilty. It is that task which the judge sent them away to complete and that is what they did.

162 In point of fact the situation is not at all unlike the case of Parkin,[127] which is one of the earliest reported judgments on the subject. In that case Parkin was charged with stealing a bank note and his defence was that he had found it three weeks later. The jury retired and returned saying that they found the prisoner guilty of having the note in his possession but were not agreed as to how he had come into possession of it. The judge asked the jury if they thought the prisoner might have found the note three weeks after the event and one of them said yes. The judge thereupon entered a verdict of not guilty. Some of the jury then called out that juryman who had answered had no authority from the other members of the jury to give the answer he did and the judge therefore directed the jury to retire again and told them that if they were satisfied that the prisoner picked the victims' pocket or picked up his pocket book with the intention of permanently depriving him of it, they ought to convict; otherwise they ought to acquit. They later convicted the prisoner and on a point of law reserved for consideration of the judges of the Court for Crown Cases reserved, the judges were clearly of the opinion that the mistake in the verdict might be corrected and that the conviction was proper.

163 The applicant submits that to permit the course which occurred here would be to convey the notion that if the judge is not satisfied with a verdict first returned by the jury he or she may give further directions to the jury and return them to the jury room until a verdict that the judge is prepared to tolerate is returned.[128] We reject that contention. The judge was not dissatisfied with the verdict. His Honour was prepared to accept the verdict of not guilty until the jury made plain that they had not yet reached a verdict that the applicant was not guilty and it appeared that the reason for the foreman stating the converse was because the jury had not understood that they would not be asked to deliver separate verdicts on each of the ways in which the case of culpable driving had been put. In those circumstances, just as in Parkin, in our view it was appropriate for the judge to give further directions on the point on which there had been a lack of understanding and to send the jury away to further reflect on the point.

164 Finally, it was submitted on behalf of the applicant that the course of deliberations, the questions asked and the mistake should lead to the conclusion that the jury seriously misunderstood the manner in which they were to proceed and that that should provoke a grave sense of unease concerning the second verdict.

165 We reject that submission. Granted that the course of questions and directions was tortuous, its effect in the end was to show that this was a jury who were not prepared to come to a conclusion until and unless they were completely clear on what it was that the law required of them and then, finally, having understood that, they were confident to bring in a verdict of culpable driving on one of the two bases on which it had been put to them.

Conclusion

166 For the reasons which we have given, the application for leave to appeal against conviction will be dismissed.

Director's appeal against sentence

167 The Director contends that the individual sentences imposed and the degree of cumulation ordered by the judge and the non-parole period are all manifestly inadequate, bearing in mind the inherent seriousness of the offence of culpable driving, the aggravating circumstances in this case that the respondent not only left the scene of the collision but attempted to frustrate the investigation into it by pretending to have drunk scotch whisky after the accident and his callous disregard for the welfare of the victim.

168 The principles which should apply in sentencing in cases of culpable driving are clear. They were recently restated by Redlich, J.A. in D.P.P. v. Gany as follows:

"Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation. No-one likes sending such people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public. This Court has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing injury, that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence. In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process. Denunciation and general deterrence must be at the forefront of the sentencing synthesis.[129]

169 Having regard to those principles, we agree that the sentence imposed on Count 1 was very light. Despite the mitigatory considerations to which the judge referred in his sentencing remarks, this offence of culpable driving was serious. Admittedly, it was not the worst case of culpable driving which may be imagined. The speed was not great, and the respondent had not ignored warnings not to drive. But it was aggravated by alcohol, which is sufficient in itself to make it a bad case. The sentences imposed on Counts 2 and 3 were also remarkably lenient, even allowing for the fact that at the time at which those were committed the maximum penalty was only two years. With respect, the extent to which they added to the respondent's total criminality warranted a considerably greater degree of cumulation than the judge allowed.

170 That said, this court is constrained in the extent to which it may interfere with a sentence on a Crown appeal. Bearing in mind the principle of double jeopardy which applies in a Crown appeal and the principle that the court should set a sentence somewhat less than might otherwise have been imposed, we are not disposed to intervene.

171 The appeal will be dismissed.

- - -

[1] [1962] VicRp 11; [1962] V.R. 75.

[2] Philpott v. Boon [1968] Tas. S.R. 97 at 99-100.

[3] Mehesz v. Redman (No. 2) (1980) 26 S.A.S.R. 244 at 252.

[4] Borowski v. Quayle [1966] VicRp 54; [1966] V.R. 382 at 386; R. v. Noll [1999] VSCA 164; [1999] 3 V.R. 704 at [3]; Cross on Evidence, Aust Ed. at [29 150].

[5] Clark v. Ryan [1960] HCA 42; (1960) 103 C.L.R. 486 at 491; Cross on Evidence, Aust. Ed. at [29 045] and [29 050].

[6] Crimes Act 1958, s.318.

[7] [1962] VicRp 14; [1962] V.R. 96 at 97.

[8] Lysaght v. Police [1964] NZHC 127; [1965] N.Z.L.R. 405.

[9] (1982) 10 A. Crim. R. 287 at 289.

[10] These days, a police officer would not be permitted to give that sort of evidence.

[11] Ibid at 289-90.

[12] Pearce & Geddes, Statutory Interpretation in Australia, 5th Ed. at [3.3].

[13] Black-Clawson Ltd v. Papierwerke A.G. [1975] UKHL 2; [1975] A.C. 591 at 614, 629 and 638; Barker v. The Queen [1983] HCA 18; (1983) 153 C.L.R. 338 at 346.

[14] Commissioner for Prices and Consumer Affairs (SA) v. Charles Moore (Aust) Ltd [1977] HCA 38; (1977) 139 C.L.R. 449 at 457; [1977] HCA 38; 14 A.L.R. 485 at 490, per Barwick, C.J; cf. Wacando v. The Commonwealth [1981] HCA 60; (1981) 148 C.L.R. 1 at 25, per Mason, J.

[15] (2003) 39 M.V.R. 117, [2003] VSCA 76.

[16] [1998] VSCA 100; [1999] 1 V.R. 518.

[17] [2002] VSCA 158; (2002) 5 V.R. 408.

[18] See for example, R. v. Ryan (1992) 16 M.V.R. 485; R. v. Beach (1994) 20 M.V.R. 174.

[19] Law Reform Commission of Victoria, Discussion Paper No 21 - Death Caused by Dangerous Driving, July 1991.

[20] Hanau v. Ehrlich [1912] A.C. 39 at 41; Babaniaris v. Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 C.L.R. 1 at 29.

[21] [2006] VSCA 86; (2006) 12 V.R. 401; (2006) 160 A. Crim. R. 435; see also R. v. TY [2006] VSCA 113.

[22] (1989) 42 A. Crim. R. 418 at 423-4

[23] [1996] 2 V.R. 406.

[24] Ibid. at 415-6, per Brooking, J.A.

[25] [2006] VSCA 86; (2006) 12 V.R. 401, per Buchanan and Vincent, JJ.A.; Charles, J.A. dissenting.

[26] Except in two sets of circumstances later to be mentioned.

[27] See also R. v. TY [2006] VSCA 113; (2006) 12 V.R. 557 at 561[21].

[28] Not surprisingly, because Heyes was not decided until after the trial in this case, the judge did not so direct

[29] Cf Woon v. The Queen [1964] HCA 23; (1964) 109 C.L.R. 529 at 541-542.

[30] [2006] VSCA 86; (2006) 12 V.R. 401.

[31] (1994) 87 C.C.C. (3d) 289 at 301; 111 D.L.R. (4th) 48.

[32] (1997) 117 C.C.C. (3d) 226 at 239[28]-[31].

[33] Which in Arcangioli was attributed to the judgment of Clark, J. of the United States Federal Court, 5th Circuit, in United States v. Myers [1977] USCA5 725; 550 F. 2d 1036 (5th Cir, 1977).

[34] (1994) 87 C.C.C. (3d) 289 at 300-301, per Major, J.

[35] 117 C.C.C. (3d) at 240 [32], per Weiler, J.A.

[36] [1990] HCA 56; (1990) 170 C.L.R. 573.

[37] [1993] HCA 63; (1993) 178 C.L.R. 193.

[38] Edwards, at 201 per Brennan, J.

[39] Unless the lies or post offence conduct comprise an indispensable link in the chain of reasoning on which proof of guilt depends: Shepherd v. The Queen [1990] HCA 56; (1990) 170 C.L.R. 573 at 585, per Dawson, J.; see also R. v. Lam & Ors (Ruling No 18) [2005] VSC 292 at [33]- [35].

[40] (1993) 178 C.L.R. at 210; R. v. Adam [1999] NSWCCA 189; (1999) 106 A. Crim. R. 510 at 521[55], per Spiegelman, C.J.

[41] [1999] VSCA 27; [1999] 2 V.R. 123 at 128-30.

[42] [2006] VSCA 86; (2006) 12 V.R. 401 at 411 [37] and 416[62].

[43] [1992] EWCA Crim 3; [1993] 4 All E.R. 877.

[44] [1995] 1 Qd. R. 213.

[45] Which was said to be based on a specimen direction published by the Judicial Studies Board.

[46] [1992] EWCA Crim 3; [1993] 4 All. E.R. 877 at 886; see also R. v. Miah [2003] EWCA Crim 3713 at [44]- [50].

[47] R. v. Miah &Others [2003] EWCA Crim 3713 para [44].

[48] [1995] 1 Qd. R. 213 at 223, per Davies, J.A.

[49] [1964] A.C. 441 at 457.

[50] Our emphasis.

[51] R. v. Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123 at 130[21], per Callaway, J.A_.; R. v. Lam (Ruling No 18)_ [2005] VSC 292 [16]- [32].

[52] [1989] 1 Qd. R. 572 at 579; see also R. v. El Adl [1993] 2 Qd. R 195.

[53] [1996] SASC 5653; (1996) 87 A. Crim. R. 407 at 409.

[54] [2002] NSWCCA 147; (2002) 130 A. Crim. R. 545 at 556[52].

[55] [1984] HCA 7; (1984) 153 C.L.R. 521.

[56] [2002] NSWCCA 147; (2002) 130 A. Crim. R. 545 at 561.

[57] Edwards v. The Queen (1993) 178 C.L.R. at 210.

[58] Chamberlain v. The Queen [1984] HCA 7; (1984) 153 C.L.R. 521 at 627, per Deane, J., cited by Dawson, J. in Shepherd v. The Queen [1990] HCA 56; (1990) 170 C.L.R. 573 at 584; R. v. Nguyen [2001] VSCA 1; (2001) 118 A. Crim. R. 479 at 489[20]; R. v. Ibrahim [2003] VSCA 180; (2003) 7 V. R. 141 at 161[72].

[59] [2006] VSCA 86; (2006) 12 V.R. 401 at 410[35], our emphasis.

[60] (1998) 125 C.C.C. (3d) 385 at 400[27], a change noted by Charles, J.A. in his dissenting judgment in Heyes at [2006] VSCA 86; (2006) 12 V.R. 401 at 410[35].

[61] [2002] NSWCCA 147; (2002) 130 A. Crim. R. 545.

[62] [1998] WASCA 100.

[63] [2003] WASCA 198 at [55], per Murray, J and at [117] per Parker, J.

[64] [2002] SASC 233 at [90].

[65] (2001) 122 A. Crim. R. at 63; [2001] QCA 123.

[66] [2001] QCA 272.

[67] [2001] VSCA 1; (2000) 118 A. Crim. R 479 at 489[20].

[68] R. v. Woolley (1989) 42 A. Crim. R. 418; R. v. Rice [1996] 2 V.R. 406_; R. v. Franklin_ [2001] VSCA 79 at [110]- [111]; R. v. Chang [2003] VSCA 149 at [6], per Ormiston, J.A. and at [43], per Charles, JA_; R. v. Burrows_ [2003] VSCA 130; R. v. Finnan [2005] VSCA 151.

[69] R. v. Ali [2001] QCA 331 at [43] per Thomas, J.A.

[70] [1996] SASC 5653; (1996) 87 A. Crim. R. 407 at 409.

[71] [1989] 1 Qd R 572; 30 A. Crim. R. 332.

[72] (1980) 24 SASR 278.

[73] At 579; 338-339.

[74] [1998] WASCA 100.; subsequently re-affirmed in R. v. Banks.

[75] See and compare Meko v. R. [2004] WASCA 159.

[76] [2001] VSCA 1; (2001) 118 A. Crim. R. 479.

[77] Ibid. at 479.

[78] cf Broadhurst [1964] AC 441 at 451.

[79] See also Faure [1999] VSCA 166; [1999] 2 VR 537 at 546 [28] per Brooking JA; White at 404; Renzella [1997] 2 VR 88 at 92.

[80] Edwards at 210-211; 361-363 per Deane, Dawson and Gaudron JJ; Osland (1998) 197 C.L.R.316 at 333, per Gaudron and Gummow, JJ.

[81] (2002) 209 C.L.R. 203 at 237-8 [94]-[95]; see also R. v. Ibrahim [2003] VSCA 180 at [69], per Eames, J.A; Banks v. R. [2003] WASCA 198 at [58]- [62], per Murray, J.; R. v. Chang [2003] VSCA 149; (2003) 7 V.R. 236 at [37].

[82] [2004] QCA 98 at [121].

[83] [2004] HCA Trans 519 (3 December 2004).

[84] R. v. Finnan [2005] VSCA 151 at [18] -[22].

[85] R. v. Burrows [2003] VSCA 130 at [46].

[86] See also Meko v. R. [2004] WASCA 159 at [50], per Heenan, J.

[87] See, for example, R. v. Burrows [2001] VSCA 130 at [27], per Charles, J.A.

[88] [2004] WASCA 159 at [47].

[89] [1982] VicRp 91; [1982] V.R. 901 at 910.

[90] (1989) 42 A. Crim. R. at 423.

[91] [1998] 2 SCR 72 at 91.

[92] R. v. Nguyen [2001] VSCA 1; (2001) 118 A. Crim. R. 479 at 490[21].

[93] Such a question is to be answered by an evaluation of all of the relevant evidence.

[94] Cf. R. v. Miah [2003] EWCA Crim. 3713 at [44]- [50].

[95] Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193 at 212.

[96] Edwards v. The Queen, supra at 205, per Brennan, J.

[97] Similarly, in R. v. Calway [2005] VSCA 266; (2005) 157 A. Crim. R. 322 at [108]- [109]. it was said that it would generally be sufficient in a murder case where manslaughter was open to direct that the jury must be satisfied that the post offence conduct demonstrates a consciousness of guilt of "the offence charged "

[98] See, for example, the helpful direction given by the trial judge in Heyes[2006] VSCA 86; , (2006) 12 V.R. 401 at [35].

[99] (1989) 42 A. Crim. R. 418, which was also a case of murder in which manslaughter (and liability as an accessory after the fact) were left to the jury; see also R. v. Rice [1996] 2 V.R. 406 at 415-6; R. v. Chang [2003] VSCA 149; (2003) 7 V.R. 236 at 244[27].

[100] R. v. Miah [2003] EWCA Crim 3713 at [46]- [49].

[101] Our emphasis.

[102] Our emphasis.

[103] Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193 at 210-211.

[104] [2005] HCA 81; (2005) 80 ALJR 444; 223 ALR 662. The principles were confirmed in Darkan v. The Queen [2006] HCA 34; (2006) 80 ALJR 1250; 228 ALR 334.

[105] At [41].

[106] At [43].

[107] Edwards v. The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210-212 per Deane, Dawson and Gaudron, JJ.

[108] [1998] 4 VR 381 at 391-392.

[109] At [139]-[142], [161].

[110] At [139].

[111] At [140].

[112] At [141].

[113] At [142].

[114] At [161].

[115] At [161].

[116] At [147].

[117] Darkan at [161] per Kirby, J.

[118] Such was the case in, for example, R. v. MMJ [2006] VSCA 226 at [98].

[119] See R. v. Palmer N.S.W.C.C.A. (1992) 64 A. Crim. R. 1; R. v. Henderson [1999] VSCA 125 at [26].

[120] i.e. The weekend before Cup Day.

[121] (1985) 82 Cr. App. R. 148 at 154.

[122] [1995] 2 N.Z.L.R. 656.

[123] (1979) 21 S.A.S.R. 171.

[124] Ibid at 175.

[125] (1997) 92 A. Crim. R. 127.

[126] Ibid at 133.

[127] (1824) 1 Mood. C.C. 45; 168 E.R. 1179.

[128] Cf. R. v. Tappy & Dewis [1960] VicRp 21; [1960] V.R. 137.

[129] D.P.P. v. Gany [2006] VSCA 148 at [35], citations omitted.