R v Cuenco [2007] VSCA 41

1 I will ask Nettle JA to deliver the first judgment.

2 The applicant seeks leave to appeal against his convictions of the manslaughter of the deceased, Celso Mayor, and of intentionally causing serious injury to the deceased's son, Christopher Mayor, for which the applicant was sentenced on 19 January 2006 to a total effective sentence of seven years' imprisonment with a non-parole period of five years.

3 In brief substance, the applicant and the deceased and the deceased's son, all of Filipino extraction, had worked together for some time at the Australia Post bulk mail facility in Dandenong. After a while, the applicant and the deceased fell out over matters relating to work, possibly because the deceased was jealous of or resented the speed with which the applicant gained promotion. Relations between them became strained and unpleasant with each directing abuse to the other on occasions when they came into contact. In order to lessen the problem, the applicant applied for and was reallocated to a different shift, although it overlapped with the deceased's shift and was the same as the shift worked by the deceased's son. During a break in work on the night of 12 November 2003, the applicant and the deceased argued in the presence of others to the point where they had physically to be separated before going back to work. According to what the applicant later told police, at the end of his shift at about midnight he went to his car in the parking area and, as was his habit, started the engine to enable it to warm up while he walked to the rear of the vehicle and raised the tailgate to stow some belongings. He said that he was at that point attacked by the deceased, who rained blows on him with his belt, and by the deceased's son. He said that the ferocity of the attack was such that he fell forward into the load area of the vehicle where he saw his fishing box, which had been in the car since he went fishing the previous weekend, and he took out from it his fishing knife for protection. He then swung out blindly in the direction of the deceased and his son, and so the fight continued until the deceased lay dead on the car park surface and the deceased's son was seriously injured. At that point, others approached and induced the applicant to put down the knife, which he did, and an ambulance and the police were called.

4 Other eye witnesses in part confirmed the applicant's story that he had been attacked by the deceased and the deceased's son but stated that after he had used his knife to repel the attack he appeared to pursue the deceased and the deceased's son and to stab and kick them on the ground.

5 Following a contested committal hearing, the applicant was presented for trial in the Criminal Division on one count of murder of Celso Mayor (count 1), one count of attempted murder of Christopher Mayor (count 2), an alternative count of intentionally causing Christopher Mayor serious injury (count 3), and a further alternative count of recklessly causing Christopher Mayor serious injury (count 4). The applicant admitted that he had killed the deceased and stabbed Christopher Mayor, but he contended that he had acted in self-defence.

6 In the course of final address, the Crown prosecutor made extensive reference to the applicant's record of interview, and in particular to statements to police in the course of the interview that he did not recollect whether he had stabbed the deceased or Christopher Mayor while they were on the ground. The prosecutor did not suggest that the statements were to be used as evidence of consciousness of guilt but he submitted to the jury that they so undermined the applicant's credibility as to render implausible the applicant's statements to police that he was attacked while at the rear of his vehicle and that he had struck out blindly in self-defence.

7 During discussion between bench and counsel in the absence of the jury, the prosecutor and defence counsel both expressed disquiet over the judge's stated intention of giving the jury an Edwards direction concerning the applicant's statements to police that he had no recollection of stabbing the deceased or Christopher Mayor on the ground. But the judge said that, given the nature of the Crown attack upon the credit of the applicant, his perception was that there was such a risk of the jury using those statements as evidence of consciousness of guilt that he considered that he was bound to give an Edwards direction in accordance with this Court's decisions in R v Nguyen[1] and R v Chang.[2]

8 Thus when the judge came to charge the jury, he handed to each member of the jury a document headed "Jury Headings" in which, amongst other things, the following appeared:

The prosecution seeks to rely on certain alleged lies as going to the credibility of the account of the accused in and before his police interview.

B. Alternative treatment of an after events lie?

A basis with other evidence for inferring an element of murder, e.g.* murderous intent, or *that there was not a belief that it was necessary to act in self defence.

Pre-requisites: *After precisely stating the "lie" of the accused, e.g.: "I cannot recall having stabbed either Mayor on the ground."

*If so, was it a lie as to an important matter?

*If so, was there no innocent explanation for the lie?

*Does it support any and if so what inference relevant to an element of murder?

9 Then in his oral directions to the jury, the judge said as to that section of the document, the following:

"The next area is what I will tell you in advance is a very artificial area of the law ... because it has not been raised by counsel at all, and it is only because of the unusual area of the law that I need to explain it at all.

...

In this case there is a degree of artificiality in my giving you directions about the subject of after events conduct. Let me preface what I am going to say by saying that [the prosecutor] did not make a submission to you along the lines that he was relying upon a particular item of after events conduct as evidence of the guilt of the accused. He did say, and I will come back to this, that he was relying upon a particular aspect of the evidence as going to the credibility of the account of the accused in the record of interview.

I have already mentioned that you have got the opportunity to draw inferences; and as I will be saying later on, you can draw inferences from facts at a particular time, before that time, and after that time. So to the extent that you can draw inferences from things that occurred afterwards, you look at the facts afterwards and you can draw inferences from after events conduct.

... The reason why I am feeling the need to explain to you the situation, even though you may readily say we do not know why the judge really went to all that trouble, was that [the prosecutor] has focussed on a particular area, a particular aspect of the conduct by the accused in relation to that police interview about the questioning by the police of the accused about stabbing the deceased on the ground.

[The prosecutor] went to some trouble in going through that record of interview. He was saying well, the police gave him [the accused] lots of opportunities and he did not come up and explain. [Defence counsel] responded to that, saying the police did not specifically ask him to do that. What [the prosecutor] has done is to focus on a particular area which might be seen to be a lie in that he says 'I do not remember,' when the subject is generally put to him.

You might say if he has lied in a serious way and as [the prosecutor] assessed it then that might be treated, for the reasons I am about to go into, as a very serious deliberate lie that can be used as evidence of guilt. [What] I am saying in relation to it is just that if there was a strong basis for doing that, the prosecutor might have been expected to put it to you. It has not been put that way but the law requires me to say that if there is some after events conduct that could be used as the basis for drawing an adverse inference, in other words an inference adverse to the accused, I need to explain to you that this is an area that requires particular intellectual rigour.

In other words, what you have to do is to carefully analyse the whole situation to see is that really an inference that is properly drawn adverse to the accused. I need to provide the background to that and I have given you some idea by what I put in the boxes there ... "

10 The judge thereafter gave to the jury several illustrations of how evidence of a lie or other post event conduct could be used in conjunction with other evidence in order to draw an inference adverse to an accused, and continued:

"You can understand in these circumstances why [the prosecutor] has not relied upon it in this way, but I am still obliged to explain it to you. First of all, the conduct must be clearly identified so that the position as to the prerequisites can be examined. So you must precisely examine this questionable lie: 'I cannot recall having stabbed either Mayor on the ground'. I have put there in my sheet of paper to give you an idea of that being the area that [the prosecutor] highlighted in his final address to you.

Do you get to first base or do you accept what [defence counsel] said? The police did not ask him that. They may have given him opportunity to, but they did not get into the area. So you must clearly identify the conduct. Then you must consider was it said? If so, does other evidence show that to be a lie? If so, was it deliberate? If so, was it a lie as to an important matter? If so, was there no innocent explanation for the lie?

Further does it support any, and if so what inference relevant to an element of murder? Great care must be taken to ensure that any inference bearing on guilt as to one or more elements of the crime charged from after events conduct is properly drawn. Evidence of conduct or lie or alleged lies after a crime can only be used as evidence of guilt if you are satisfied as to those prerequisites including that there was no other explanation consistent with innocence for that conduct or lies."

11 Finally, his Honour explained that there could be many reasons for telling lies and gave several possible examples, before concluding as follows:

"I mention those matters because of the importance that if you were to get into this area of knowing that it has to be addressed with intellectual rigour. You must go through processes. You might think that in the circumstances, because [the prosecutor] has not raised it, you need not go into the matter at all and you should simply treat that issue as being something that you take into account when assessing the credibility of the account of the accused. But I considered it was necessary for me to raise it because of the emphasis upon this particular topic although not in the same way. [The prosecutor] was clear that it was not raised in that way that the last part of [these] directions has dealt with.

I might say that if there was some other area of after events conduct that you thought was significant for the like reason you would have to go through the same process in relation to that. It is a warning to you generally as to the need for great care in relation to the drawing of inferences from after events conduct."

12 There are two grounds of appeal. The first is that the judge erred in directing the jury concerning the evidence of consciousness of guilt, in that -

(a) there was no evidence constituting evidence of consciousness of guilt;

(b) it was not open to the jury to find that anything said or done by the applicant subsequent to the commission of the alleged offences evidenced consciousness of guilt in the applicant of any of the offences charged;

(c) the Crown prosecutor did not rely upon anything said or done by the applicant subsequent to the commission of the alleged offences as evidence of consciousness of guilt in the applicant of any of the offences charged.

The second ground is that the judge erred in failing to direct the jury that, if the jury determined that the applicant had lied in any of his interviews with investigating police officers, the jury must not follow or engage in a process of reasoning to the effect that, just because the applicant was shown to have told a lie about something, it was evidence of guilt.

13 In oral argument, counsel for the applicant submitted that the judge erred by directing the jury in a manner that was inconsistent with, and contrary to, the way in which the prosecutor put the Crown case, and by inviting the jury to engage in an impermissible process of reasoning (towards the applicant's guilt and rejection of the applicant's defence of self-defence) on the basis of evidence that was incapable of constituting evidence of consciousness of guilt. In counsel's submission, the proper course for the judge to have followed was to give the jury a direction along the lines propounded in Zoneff v The Queen.[3]

14 Counsel's argument entails a number of propositions with which it is convenient to deal in turn. The first is that, because the prosecutor stated that he did not rely on lies or other post-offence conduct as evidence of consciousness of guilt, it was impermissible for the judge to direct the jury that it was possible to regard some lies and conduct as evidence of consciousness of guilt. That proposition cannot be accepted in the broad terms in which it was expressed.

15 The general rule is that an Edwards direction should only be given if the prosecution contends that a lie or other post-offence conduct is evidence of consciousness of guilt, in the sense that it was told or engaged in because the accused knew that the truth or failure to act would implicate him in the commission of the offence, and if in fact the lie or other conduct is capable of bearing that character.[4] Ordinarily, therefore, if the prosecution does not so contend, it is sufficient to guard against the possibility of the jury mistaking the effect of any evidence of lies or other post-offence conduct as evidence of consciousness of guilt to warn the jury along the lines which were propounded in Zoneff:

"You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt."[5]

16 But, as was recognised in Zoneff, there are cases in which the risk of misunderstanding on the part of the jury as to the use which they may make of evidence of lies or other post-offence conduct is such that a judge should give an Edwards direction notwithstanding that the prosecutor has not put that a lie or other conduct has been told or committed out of consciousness of guilt. As Kirby J put it, the need to give an Edwards direction:

"... cannot ultimately depend upon the intention or subjective purpose of the prosecutor as to whether or not a judicial direction to a jury about that subject of lies [or conduct] must be given. The criterion must be the way the jury might use the evidence not the subjective purpose of the prosecutor in eliciting the evidence or relying upon it. ... There is a lot of loose talk in the cases about the prosecutor's intention ... [It is] irrelevant except so far as it helps to identify what the jury might have made of the questioning or evidence."[6]

17 In effect, Zoneff qualified observations earlier made by Winneke P and Charles and Callaway JJA in R v Renzella[7] that:

"There are some cases where, although the Crown does not rely on lies as implied admissions, there is a danger that the jury may regard them in that light. Where that is so, the judge should direct the jury that the lies go only to credit and are not to be used as evidence or implied admissions of guilt. It is not for the judge to put the Crown case in a different way, and accordingly he or she should not follow the alternative course, apparently countenanced in R v Goodway,[8] of giving an Edwards direction in case the jury chooses to use the lies as doing more than merely reflecting on the credibility of the accused."[9]

18 The view expressed in Zoneff was repeated by the High Court in R v Dhanhoa,[10] and the question fell for further consideration by this Court in R v Nguyen[11] and R v Chang;[12] where of course it was dealt with in accordance with what the High Court had said in Zoneff and Dhanhoa. In each case it was held that an Edwards direction should have been given notwithstanding that, in Nguyen, the judge had prevented the prosecutor from so characterising the effect of lies and, in Chang, the prosecutor had chosen not so to characterise them.

Evidence capable of constituting evidence of consciousness of guilt

19 The second proposition informing counsel's argument is that there was no evidence capable of constituting evidence of consciousness of guilt and, in particular, that the applicant's statements to police that he did not remember stabbing either Mayor on the ground was incapable of constituting evidence of consciousness of guilt. Counsel submitted that the decision of this Court in R v Russo[13] established that an accused's failure to mention a matter to police is incapable of constituting evidence of consciousness of guilt.

20 In my view that submission represents a misunderstanding of what was decided in Russo. The law is that it is forbidden to use an accused's silence, at least after caution, as an admission which could itself provide evidence against him.[14] But that does not mean that the deliberate omission of facts from a statement made by an accused to police cannot ever be treated as indicative of guilt.[15] An accused's conscious omission of events from a detailed account that he provides may provide a basis for drawing the inference of a consciousness of guilt and, if an accused makes a positive statement to police that he cannot remember an event, or that he has no recollection of it or the details of it, it may well constitute evidence which in combination with other evidence is capable of amounting to evidence of consciousness of guilt. The point was dealt with by Tadgell JA in R v De Marco:[16]

"I do not say that the judge might not invite the jury to use a feigned absence of memory as an admission against interest if the true basis for the use of it were explained, as the passage I have last read from Edwards v. The Queen indicates it should be. A lie of that kind could be, as I understand it, used to assist a conclusion that a recollection of what was done could be inconsistent with a lack of intention to do it at the time it was done."[17] (My emphasis).

21 The decision in R v Russo turns on its own facts. It took Tadgell JA's observations in De Marco as being a correct exposition of the law and distinguished them on the basis of the particular fact in Russo that the accused had not said anything to police about having seen a safe at the scene of the killing or put it away, as opposed to stating positively to police that he had no recollection of having seen the safe or of putting it away.

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.

31 Counsel's fourth proposition was that, in the circumstances of this case, the judge should not have given the jury an Edwards direction, which was in effect contrary to the way in which the Crown put its case, and that, if there were any risk of the jury misusing the applicant's statements as to having no recollection of the details, it should properly have been dealt with by means of a Zoneff direction.

32 Reference has already been made to the High Court's observations in Zoneff that, where there is a significant risk of misunderstanding on the part of the jury as to the use which they may make of evidence of lies or other post-offence conduct, a judge may need to give an Edwards direction notwithstanding that the prosecutor has not put that a lie or other conduct has been told or committed out of consciousness of guilt. How significant the risk must be, however, is essentially a matter for the trial judge to assess. Ordinarily, he or she will be best placed to determine the likelihood of the jury treating such lies or other post-offence conduct as evidence of guilt and to judge whether in all the circumstances a Zoneff direction is sufficient to dispel the risk, as opposed to going to the lengths of a full Edwards direction. Understandably, and in my view correctly, trial judges tend to err on the side of caution. They are naturally inclined to go as far as they can to ensure that the jury will not decide the matter on a basis which is unfair to the accused, and at the same time they are keen to guard against the possibility of it later being said on appeal, as it has been said in the past, that the judge erred by failing to go to the lengths of a full Edwards direction even though it had not been contended that there was evidence of consciousness of guilt. Consequently, in my view, appellate courts should be slow to contradict a trial judge's decision on which course to take.

33 So to say does not imply that a judge should go to a full Edwards direction in any case where there is a risk of confusion. As Zoneff shows, and Dhanoa reinforces, in the bulk of cases a direction along Zoneff lines should suffice. Where it does, it may also be fairer to the accused because, unlike an Edwards direction, a Zoneff direction does not imply the possibility that some of the evidence which has been adduced is capable of amounting to evidence of consciousness of guilt. In short there needs to be a significant risk of confusion and thus that a Zoneff direction will not suffice before a judge is justified in adopting the course of giving a full Edwards direction. But in this case the judge was plainly of the view that there was a serious risk that the jury would treat the applicant's proclaimed lack of recollection as evidence of consciousness of guilt, and in my view his Honour is not shown to have been in error in taking that view.

34 The matter can perhaps be tested by imagining what the situation would have been if the judge had not given the Edwards direction and an appeal against conviction had been brought on the basis that there was a significant risk that the jury mistreated the applicant's proclaimed lack of recollection as evidence of consciousness of guilt without the benefit of an Edwards direction. All things considered it seems to me not unlikely that such an appeal might have succeeded. It is clear that the prosecutor put great emphasis on the applicant's proclaimed lack of recollection and on each occasion that he did he coupled it with references to the effect on the applicant's credibility which were likely to lead the jury to conclude that the applicant was lying about something which went to the very heart of the nature and gravity of the alleged offence. That is the very sort of connection which was held in Nguyen to necessitate an Edwards direction. It is not at all dissimilar in effect from the evidence of change in position which was held in Ali (No 2) to necessitate such a direction. And while it is not as strong as the evidence which in Chang was said to warrant that the conviction be quashed, it is conceptually of a similar order.

35 In any event, as I have said, the judge was best placed to assess the position, and nothing which has been said on behalf of the applicant persuades me that there is sufficient reason to doubt his Honour's assessment.

Invitation to jury to consider other evidence of consciousness of guilt

36 Counsel's fifth and last proposition was that, even if the judge were right to give an Edwards direction in respect of the applicant's proclaimed lack of recollection, the judge erred in the last paragraph of the oral directions by telling the jury that, if there were some other area of after events conduct which they thought was significant "for the like reason", they would have to go through the same process in relation to that as in relation to the applicant's proclaimed lack of recollection. Counsel submitted that, as there was no other evidence capable of constituting evidence of consciousness of guilt, the judge's invitation may have led to faulty reasoning on the part of the jury and, therefore, that there had been a miscarriage of justice.

37 I do not accept that proposition either. It would have been preferable if the judge had not said anything about the possibility of the jury regarding other evidence as indicative of consciousness of guilt. As counsel for the applicant pointed out, in R v TY[24], Buchanan JA, with whom Warren CJ and Vincent JA agreed, said that he thought it inappropriate of the judge in that case to invite the jury to look for evidence of consciousness of guilt and said that the invitation may have led the jury in that case to engage in faulty reasoning. Significantly, however, I do not read R v TY as holding that the judge's invitation constituted a miscarriage of justice - the case was essentially decided on other grounds since reconsidered in Ciantar - and in any event, in this case I do not think there to be a reasonable possibility of the jury being led into error.[25]

38 To that may be added that, even if it had not been necessary for the judge to go to the lengths of a full Edwards direction, or if it had been an error to extend the direction to other unspecified evidence, it is difficult to see what injustice might thereby have been caused to the applicant. The applicant's argument is that the judge in effect put the case on a different basis from that on which it was put by the Crown and so subjected the applicant to the risk of being convicted on a basis different to that for which the Crown contended. But in my view that overlooks that the judge was at pains in his directions to the jury to stress repeatedly that the Crown did not suggest that the proclaimed lack of recollection was capable of amounting to evidence of consciousness of guilt, and that the jury should not conclude from the fact that the judge felt bound to mention the matter that it was necessarily a matter of high priority. His Honour also stressed that because the prosecutor was not putting the evidence forward as evidence of consciousness of guilt the jury might well conclude that there was not a strong basis to treat it in that fashion. Above all, the judge stressed that the direction which he was giving the jury on the use which they might make of post-offence conduct was a warning to them generally as to the need for great care in relation to the drawing of inferences from after-events conduct. For the judge then to add a warning that the jury could not treat any other evidence as bespeaking consciousness of guilt without first subjecting it to the rigour of the Edwards process can, in my view, only have aided the applicant by making it even more unlikely than would otherwise have been the case that the jury would treat as evidence of consciousness of guilt any evidence which was incapable of having that effect.

39 In those circumstances, I am unable to accept that the judge's directions could have detracted significantly, if at all, from the applicant's chances of acquittal.

40 Further to that, however, even if the judge's approach had been productive of a miscarriage of justice, and in my view it was not, I consider that this would be a clear case for the application of the proviso. The applicant did not give evidence and therefore this Court is in substantially as good a position to assess the credibility of the answers that he gave to police in his record of interview. Putting aside altogether the applicant's proclaimed lack of recollection and focussing instead on his version of events as told in the record of interview, the versions of events deposed to by other witnesses, and the forensic evidence, the Crown case was in my view overwhelming that the applicant struck intentionally and with a degree of force which the applicant could not have honestly believed on reasonable grounds was necessary in self-defence, and thus that he was guilty of at least manslaughter and intentionally causing serious injury. The natural limitations faced by this Court in the circumstances of this case are not such as to preclude me from coming to that view. One may approach the matter on a view of the evidence of each witness which is most favourable to the applicant and still be driven to the same conclusion. Based upon my assessment of the whole of the record, I consider that the applicant was proved beyond reasonable doubt to be guilty of the offences of manslaughter and intentionally causing serious injury on which the jury returned its verdicts of guilty.[26] It follows in my view that, even if the Edwards direction were not warranted, or if it should not have been extended to other unspecified evidence, there was no substantial miscarriage of justice.

41 For those reasons, I would refuse the application.

42 I too would refuse the application for the reasons given by Nettle JA.

44 The order of the Court is -

Application refused.

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

[2] [2003] VSCA 149; (2003) 7 VR 236.

[3] (2000) 200 CLR 234.

[4] Zoneff v The Queen ibid at 244[16], per Gleeson CJ and Gaudron, Gummow and Callinan JJ; Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at 12[33]-[34], 17[59] and 28[96]-[97].

[5] Ibid at 245[23].

[6] Ibid at 263[71], in diss but not on this point.

[7] [1997] 2 VR 88.

[8] (1993) 98 Cr App R 11 at 15 and 17; [1993] 4 All ER 894

[9] Ibid at 92[11].

[10] [2003] HCA 40; (2003) 217 CLR 1.

[11] [2001] VSCA 1; (2001) 118 A Crim R 479.

[12] [2003] VSCA 149; (2003) 7 VR 236.

[13] [2004] VSCA 206; (2004) 11 VR 1.

[14] R v Smith, Ashford and Schevella (1990) 50 A Crim R 434 at 457; R v Bruce [1998] VR 579 at 594.

[15] Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529.

[16] Unreported, Court of Appeal, 26 June 1997; BC 970902.

[17] Ibid at 13, see also R v Russo [2004] VSCA 206; (2004) 11 VR 1 at 11[33].

[18] [2005] VSCA 302; (2005) 13 VR 257.

[19] [2006] VSCA 44.

[20] [2006] VSCA 86; (2006) 12 VR 401.

[21] [2006] VSCA 113; (2006) 12 VR 557.

[22] [2006] VSCA 263.

[23] Ibid at [65].

[24] (2006) 12 VR 556 at 561[22]-[23].

[25] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319 at 332; Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at 18[60].

[26] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 316[41].