22 Counsel's third proposition was that there was a risk that the judge's direction could have led the jury to rely on the applicant's assertions of lack of recollection as supporting an inference which negatived the honest and reasonable use of force in self-defence, when, logically, the applicant's proclaimed lack of recollection was incapable of supporting such an inference. He submitted that the observations of this Court in R v Ali (No 2),[18] R v Favata,[19] R v Heyes[20] and R v TY[21] provided support for that proposition.
23 I do not accept the proposition, or that Ali (No 2), Favata, Heyes or TY provides any support for it.
24 Ali (No 2) appears to me to run counter to counsel's argument. The point there was that the Crown had relied heavily on a shift in position as between the way in which the defence case was conducted at the accused's first trial and the way in which it was conducted at his second trial. Charles JA, with whom Ormiston and Callaway JJA largely agreed, concluded that there was a real risk of the jury treating the change in position as evidence of consciousness of guilt, and therefore that the judge had erred by failing to state expressly that the Edwards directions which he had given the jury with respect to other evidence applied also to the change in position. With respect, the case is a good example of the application of the principle recognised in Zoneff that, where there is a risk of misunderstanding on the part of the jury as to the use to be made of post-offence conduct, the judge may need to give an Edwards direction notwithstanding that the prosecutor disavows reliance on that post-offence conduct as evidence of consciousness of guilt.
25 R v Favata does little more to assist the applicant, at least on this point. It was concerned with three pieces of evidence which were said to be incapable of evidencing consciousness of guilt: (1) the fact that the accused had become agitated and perspired profusely when interviewed by police; (2) a statement by the accused that he did not know "J" and "T"; and (3) a statement made to undercover operatives that his wife had provided him with a false alibi. Vincent JA, with whom Callaway and Buchanan JJA agreed, held as to (1) that, although the accused's demeanour during interview was capable of constituting evidence of consciousness of guilt, the judge had erred by failing to instruct the jury as to the particular care with which they had to approach "the dangerous task of drawing inferences from demeanour"; as to (2), that the statement about not knowing "J" and "T" was in the particular circumstances of the case incapable of constituting evidence of consciousness of guilt, and thus the judge had erred by leaving it to the jury on the basis that it was capable of having that effect; and, as to (3), that the statements about the provision of a false alibi were capable of constituting evidence of consciousness of guilt but that the judge had erred by failing to give the jury an Edwards direction which extended to those statements.
26 There is little in that, apart from point (2), which bears on the matters here in issue. Evidently, point (2) is relevant because it illustrates the proposition that it is an error to leave to a jury as capable of constituting evidence of consciousness of guilt evidence which is not capable of constituting evidence of consciousness of guilt. But, for present purposes, it takes the matter no further than counsel's previous submissions. As I have said, I consider that the applicant's statement to police that he had no recollection of events was capable, in context, of constituting evidence of consciousness of guilt.
27 R v Heyes and R v TY may for this purpose be dealt with together. In the former it was held by a 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 unlawful and dangerous act. The essence of the decision, which was based on Canadian jurisprudence, was that the lies could only be used in determining the discrete question of whether the accused was justified in killing the deceased in self defence. In R v TY, the court followed R v Heyes in order to hold that evidence of the conduct of an accused after his attack on the deceased was logically incapable of supporting an inference that the accused had formed the requisite intention to constitute murder at the time of the attack. The decision in each case rested on reasoning that the evidence in question was by itself equally capable of explanation as exhibiting a consciousness of guilt that the accused had caused the death by an unlawful act as that he had caused death by murder, and thus could not found a conclusion that the accused was guilty of one crime rather than another.
28 Both decisions, however, must now be read subject to R v Ciantar,[22] in which this Court composed of five members unanimously rejected the Canadian jurisprudence followed in Heyes and TY and held consistently with decisions of other Australian state courts of appeal and of the English Court of Appeal that, where a lie or other post-offence conduct is part of a totality of 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 not be insufficient to exclude other inferences.
29 Ciantar recognised that there may 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. It gave as an example the relatively unlikely case of a murder presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully but denied murder and in which the only evidence of the killing apart from the admission was that the accused had fled the killing and initially denied involvement in it. Clearly enough, on that limited evidence one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or some other lesser included offence, and the jury would need to be so instructed. But, as the Court went on in Ciantar to make plain, 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 circumstances of the death, the means of killing and 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. Thus, as was held in Ciantar, although the post-offence conduct may not be enough in itself to sustain an inference that the 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.[23]
30 In my view something very similar is applicable here. The statement that the applicant had no recollection of stabbing the deceased and the other victim on the ground was not enough in itself to negative self-defence. But it was not the only evidence presented. Apart from the admission of the killing and stabbing, there was the evidence of the prior animosity, evidence of other eye witnesses which contradicted the applicant's version of events during the attack and as to his actions immediately following the attack, evidence that he had kicked each of the victims while they lay on the ground hurt, and forensic evidence of multiple stab wounds to the front and back of the victims. It seems to me that when all of that is combined the jury could properly come to the view that the accused was lying about having no recollection of the details because he was conscious of his guilt of having struck otherwise than in self-defence.