R v Gojanovic

Court of Appeal (Vic)|2007-08-14|Before: ASHLEY and KELLAM JJA and KAYE AJA

Criminal law - Murder - Consciousness of guilt - Relationship evidence - Adequacy of propensity warning - Provocation - Applications for leave to appeal against conviction and sentence dismissed.

**1 In May 2002 the applicant was found guilty by a jury of the murder of Angela Farnsworth. On 2 July 2004 the Court of Appeal, by a majority, set aside that verdict and ordered that the applicant be re-tried.[1] On his retrial, on 24 March 2005 a jury found the applicant guilty of the murder of Ms Farnsworth on 12 March 2001. On 6 April 2005 the applicant was sentenced to a term of imprisonment of 20 years. The sentencing judge directed that the applicant not be eligible for parole until he had served a period of 15 years' imprisonment. The applicant now seeks leave to appeal against both conviction and sentence.

2 Stated briefly, the Crown case at trial was as follows[2]. The deceased entered into a de facto relationship with the applicant in 1996. At that time she was the mother of three children as the result of two previous marriages. In 1998 the relationship between the deceased and the applicant resulted in the birth of a son. Upon the birth of that child the applicant and the deceased rented premises at Chelmsford Avenue in Herne Hill. They occupied those premises until late 2000, at which time they were evicted for failure to pay rent.

3 By 2000, the relationship between the applicant and the deceased had deteriorated to such an extent that during that year they separated and reconciled on several occasions. The deterioration in the relationship between the parties developed at least partly because the deceased had a gambling habit and spent a considerable part of her time and money playing poker machines at various venues throughout Geelong. A further area of dispute was a concern held by the applicant that the deceased did not care for their son adequately.

4 In July 2000 an incident occurred in which the applicant assaulted the deceased. The Crown contended that thereafter she became fearful of him.

5 In October 2000 the deceased moved into premises at Pavo Street, Belmont, with three of her four children. The applicant continued to visit her and their son on a regular basis; and, indeed, stayed overnight intermittently at that address.

6 After the deceased moved to Pavo Street, the applicant commenced, in effect, to stalk her - by following her and by telephoning and visiting premises where she was playing poker machines and socialising. The applicant's motive was to enable him to obtain information which would demonstrate that the deceased was not fit to have custody of their child.

7 In early March 2000, the applicant contacted the two fathers of the other three children of the deceased. He told them that the deceased was about to be evicted from her house in Pavo Street by reason of her failure to pay rent. Then, on 6 March 2001 he collected his son for the purpose of an agreed two day access visit.

8 At that time the deceased was expected to appear before the Residential Tenancies List of the Victorian Civil and Administrative Tribunal. The owner of the premises was seeking an eviction order because of her failure to make timely payment of rent. The hearing did not proceed on 8 March 2001, however, because the deceased's father intervened and brought the rent up to date. But the applicant visited the office of the landlord's real estate agent on that day and offered to provide information against the deceased. The agent refused to co-operate with the applicant. The latter then attended upon the Tribunal and unsuccessfully argued that the deceased should be evicted. The Tribunal adjourned the eviction application as requested by the landlord's representative.

9 In accordance with his arrangements with the deceased, the applicant was due to return his son to the deceased after the agreed access period ended on 8 March 2001. But he failed to do so. He and the child continued to reside at his sister's house in St Leonards.

10 As a result of the failure of the applicant to return the child, on Saturday 10 March the deceased sought advice from a solicitor about custody.

11 Later that day the deceased went to the Lord of Isles Hotel. While speaking to staff there, she requested them to not give information about her to the applicant, as she had become aware that he was following her and was seeking information about her movements.

12 On Sunday 11 March, the deceased visited the Lord of Isles Hotel again. She was told by one of the members of staff that the applicant had been making phone calls to the hotel requesting information about her. The deceased told the staff member that she was frightened of the applicant.

13 On the evening of 11 March the deceased left her home to socialise and play the poker machines. Her other children were in the custody of their fathers. At 8.30 pm she went to the Lord of Isles Hotel, and spent the evening there. She left the hotel at 3.45 am on the morning of 12 March. She asked an attendant, Mr Hay, to escort her to her car which was in the car park at the back of the hotel, saying that she was scared. She went home to 68 Pavo Street, Belmont, arriving at approximately 4 am.

14 The accused, who had been following her, also arrived at her address at about the same time and gained entry to the house. It was, in the end, common ground that the applicant killed the deceased not long after he entered the house. The contest centred upon the applicant's physical and mental state at the time of the killing.

15 The Crown alleged that the applicant clubbed the deceased around the head a number of times with a rubber mallet, probably rendering her unconscious, and leaving her helpless and lying on the floor of the hallway in the house; and that the applicant then went to the bedroom, only a short distance away, removed a cord or sash from her dressing gown, returned to where she was, wrapped the cord around her neck, and choked her to death.

16 Then the applicant left the house, and returned to where he was living in St Leonards. He washed his trousers, almost certainly to remove the deceased's blood on them, and waited for a time.

17 Later on the applicant drove to 68 Pavo Street, arriving when the police were present. Upon his arrival, he pretended that he did not know anything about what had happened, and exhibited visible distress when told by police that Ms Farnsworth was dead.

18 The applicant made a lengthy statement to the police on 12 March. In it, he explained his relationship with the deceased, and effectively denied any knowledge of the death for which he was responsible.

19 Later that day a formal record of interview, which was videotaped, was conducted with the applicant. At first he continued his false account of what had occurred but, after a short break in the interview, he confessed and gave his version of the way in which the deceased was killed.

20 The defence case was multi-faceted. It was contended that the applicant was a brittle diabetic, - it was uncontroversial that he had been a diabetic since at least 1990 - and that the rise and fall of blood sugar levels can make a diabetic act as an automaton, a robot. That, it was said, was what had happened in this instance. Thus the defence contested the Crown case that the killing was by a conscious, voluntary and deliberate act. Again, the defence contested the Crown case that the killing was done with intent to kill or to do serious injury. Still further, it was put that the applicant was torn emotionally between his love for his son and his duty to the child's mother, and that hopes of her stopping her gambling, frustration and distress, all converged at the time when the deceased was killed. In that connection it was alleged that the deceased, when confronted by the applicant with being out so late, was neither contrite nor apologetic. Rather she was angry, and screamed at and "wrestled" with him, and he then "snapped". The issue of provocation was put to the jury by the trial judge.

21 The applicant relies upon four grounds of appeal in relation to his appeal upon conviction.**

"1. In leaving both conduct and lies of the applicant as being capable of demonstrating a consciousness of guilt of the crime of murder.

2. In failing to adequately explain how the conduct and lies could be material to the crime of murder.
3. In directing the jury concerning the use of post offence conduct that they could rely on examples of this type of conduct singularly or cumulatively as evincing consciousness of guilt of murder."

22 The Crown sought to rely upon post-offence conduct, and lies, as evidencing consciousness of guilt of the offence charged. The conduct, and the alleged lies, were identified by the Crown, and by his Honour - in the latter case both in writing and orally. The conduct was described this way by the learned judge in a document which he provided to the jury.

1. Disposing of the mallet en route to St. Leonards
2. Washing his jeans at St. Leonards
3. The telephone call to Sue Gladwell in which he pretended to be looking for Angela
4. Upon arrival at the scene pretending to Police Officers that he knew nothing of Angela's death.

1. The lies generally in his statement to Police and the Record of Interview as to his whereabouts and movements on the 11th and 12th of March 2001 and pretending to have no knowledge of Angela Farnsworth's death.
2. Specifically the lie that he was not in Geelong and had not seen Angela Farnsworth on the 12th of March 2001."

**23 We should expand a little upon the items of conduct upon which the Crown relied.

24 Item 1, "Disposing of the mallet on route to St. Leonards", referred to the applicant's admitted conduct in disposing of the mallet with which he had repeatedly struck the deceased, such disposal taking place whilst the applicant was returning to his sister's home in St Leonards from the scene of the killing. On his account, the applicant put the mallet into a trash can.

25 Item 2, "Washing his jeans at St. Leonards", referred to the applicant's conduct in washing his jeans on his return to his sister's home after the killing.

26 Item 3, the making of a telephone call by the applicant to the deceased's friend, Ms Sue Gladwell, referred to a telephone call made at about 9.25 am on 12 March whilst the applicant was travelling with his son from St Leonards to the deceased's Geelong home. The applicant asked Ms Gladwell where the deceased was, and said that he had to find her.

27 Item 4, was the applicant's pretence, as the Crown alleged it was, that he knew nothing of the deceased's death when he arrived at her home with his son at 9.30 am on 12 March.

28 Turning to lies, the Crown relied upon false statements made by the applicant as to his whereabouts and movements on 11 and 12 March, and what was said to be his pretence that he knew nothing about the death of the deceased. Such false statements - there were many of them - were variously made in a statement which the applicant finalised and signed a little after 2.00 pm on 12 March, in the course of the first 1207 questions and answers in a record of interview made later that day, and at the outset when the applicant attended the deceased's home at 9.30 am. The Crown identified as a specific lie the applicant's statement that he had not been in Geelong on 12 March, and that he had not seen the deceased that day.

29 It was not submitted by the applicant's counsel at trial that such conduct and alleged lies could not be relied upon by the Crown as demonstrating consciousness of guilt of murder. Before this Court, however, counsel (who was not trial counsel) sought to support the three aspects of ground 1, which proposed that the learned trial judge erred in leaving the impugned conduct and alleged lies to the jury as being capable of demonstrating consciousness of guilt of murder; and - if that was wrong - then that the judge erred in the directions which he gave.**

**30 Counsel for the applicant submitted in his written outline that it was not in dispute that his client had killed Ms Farnsworth. The issues raised by the evidence were automatism, intent, and accident; and also manslaughter by provocation and by unlawful and dangerous act. If the jury was satisfied that the applicant's conduct had been conscious, voluntary and deliberate, nothing in the impugned conduct (in which, for convenience, we will hereafter include the alleged lies) necessarily made it capable by being referable to murder rather than manslaughter. Such conduct was, put another way, intractably neutral.

31 In oral argument, counsel did not dispute that the impugned conduct could have been left to the jury in disproof of accident; but he continued to insist that it could not have been used in proof of the specific intent of murder. He did not seek to go behind DPP v Ciantar.[3] Rather, he submitted that the evidence could not be so used in the circumstances of this case. The matter was not one for resolution by the jury, for the conduct could do no more than equally lead to conclusions that it told of consciousness of guilt of murder or of something else.

32 Counsel for the Crown submitted, by his written outline, that the matters advanced to demonstrate consciousness of guilt were not intractably neutral. They were part of a circumstantial case. An inference of guilt may be drawn from a concatenation of circumstances including post-offence conduct. The fact that the conduct relied upon by the Crown was consistent with a possible explanation that the applicant was conscious of his guilt of manslaughter rather than murder was not a reason why the conduct should not have been left for the jury's consideration.

33 In oral submissions, counsel noted the concession made for the applicant that the impugned conduct could have been left to the jury on the issue whether the killing had been accidental[4]. Once that concession was made, counsel submitted, it followed that the conduct had been available for the jury's consideration generally in relation to consciousness of guilt.

34 In our opinion, the impugned conduct was rightly left for the jury's consideration upon the question whether it bespoke the applicant's consciousness of guilt of the offence charged. We need not rest our conclusion on the concession made by applicant's counsel, although the concession was arguably sufficient to permit the conduct being left for the jury's consideration on the larger question. Rather, in circumstances where the correctness of Ciantar was accepted, the conduct was properly left for the jury's consideration, as part of a circumstantial case - of the "strands in a cable" type - upon which the Crown relied in proof of murder.

35 As to principle, we should refer briefly to several passages in Ciantar. The Court said this:**

"[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." (Footnotes omitted)

"[44] ... 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 was applied in Edwards v. R." (Footnotes omitted)

"[52] ... 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", 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." (Footnotes omitted)

"[66] ... 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." (Footnotes omitted)

**36 Then, as to the circumstances of this case, the Crown relied in proof of murder upon a body of circumstantial evidence, of which the post-offence conduct was but a part. So, it relied upon relationship evidence, including an assault by the applicant upon the deceased in July 2000, for purposes which we later discuss. It relied upon the applicant's "stalking" of the deceased for a period before her death. It relied upon the applicant's movements in the hours before the deceased's death, culminating in his following her home in the early hours of 12 March 2001, and then entering her home, having left his car parked some distance from the premises. It relied upon the number of blows inflicted by the applicant, wielding the mallet, on the deceased's head, and what was said to be the degree of force and accuracy of the blows. It relied on the time that must have been taken for the applicant to go to the bedroom, get the cord, and then return to the presence of the deceased and apply the cord, with force, as a ligature, for a period of 15-20 seconds. It relied also upon what was said to be the great improbability that the applicant had suffered an hypoglycaemic episode preceding and during the fatal attack.

37 In our opinion, the concatenation of circumstances just outlined, even independently of the impugned post-offence conduct, was well capable of leading to a conclusion by the jury that the applicant had killed the deceased by a conscious, voluntary and deliberate act, with intent to kill her or at least to do really serious injury; and to a conclusion that the Crown had negated a killing under provocation. Beyond that, we consider that the jury was entitled to conclude that the post-offence conduct had been engaged in out of the applicant's consciousness of his guilt of murder; this being a strand, though not a necessary strand, in the circumstantial case raised against the applicant. Thus, the case was not one in which the post-offence conduct was intractably neutral.**

**38 Counsel for the applicant submitted that it had been necessary for the learned trial judge, if post-offence conduct was to be left, to explain to the jury with precision how the same was material to murder rather than manslaughter. So -

• The jury should have been directed that it had to be satisfied that a consciousness of guilt of manslaughter by either provocation or unlawful and dangerous act did not provide a possible reasonable explanation for the conduct.

• The judge needed to explain to the jury the precise basis upon which the Crown relied upon the conduct - to negative automatism, to establish murderous intent, to negative provocation, to negative unlawful and dangerous act manslaughter, or for more than one of those purposes.

39 Counsel relied particularly upon the following passages in Ciantar:**

"[81] ... 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:

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

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

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:

any evidence of post-offence conduct on which the Crown seeks to rely as evidence of consciousness of guilt;
to what issue the evidence of post-offence conduct as evidence of consciousness of guilt relates; and

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."

"[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:

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

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."

**40 In oral submissions, counsel drew attention to passages in the judge's charge, and in a re-direction. He contended that they relevantly fell short of what was required. We will refer to those passages a little later.

41 Counsel for the Crown submitted that the judge's directions were proper and appropriate. He emphasised that the Crown only relied upon the post-offence conduct in proof of murder, and that the judge had repeatedly so instructed the jury. In the particular case, that was enough. The jury could only use the impugned conduct as telling in consciousness of guilt if it had excluded all other reasonable explanations, including the applicant's consciousness of guilt of manslaughter.

42 Counsel for the Crown added, in oral submissions, that the learned judge had made it crystal clear what issues the post-offence conduct was directed to. He had done so by directing the jury extensively concerning each element of the crime of murder, and by then describing the way in which the Crown sought to establish that element and the way in which the defence had responded.

43 To the last-mentioned submission, counsel for the applicant responded that all his Honour had done was to tell the jury what arguments the parties had advanced concerning the elements of murder. That was not to be confused with what would have been an appropriate direction.

44 In our opinion the learned judge's charge and re-direction, read in full, complied with the template described in Ciantar.

" ... part of the evidence upon which the Crown relies in this case is the evidence as to the accused's behaviour after the killing and, in particular, his disposal of the mallet, washing his trousers, ringing Sue Gladwell and lies to the police involving professed lack of knowledge as to the deceased's fate. It is contended that the accused behaved as he did because he realised his guilt of the offence of murder and feared discovery for this reason. You can infer that the accused has, by such behaviour, demonstrated a consciousness of responsibility of the commission of the crime of murder if, and only if, you are satisfied beyond reasonable doubt, firstly, that the conduct or statements attributed to the accused were, indeed, engaged in or made by him. Secondly, that the conduct was consciously engaged in by him or that a statement was made which he was aware at the time was a lie. Thirdly, that the conduct or statement related to a matter of importance in relation to the commission of the crime and, fourthly, that the only reasonable explanation for behaving in this way or telling such deliberate lies was his consciousness or awareness that he was responsible for murder."

"You must be satisfied of each of the four matters for consideration which I have identified for you before you can use any of the above alleged facts taken alone or together as founding an inference that the accused has demonstrated a consciousness of responsibility of the commission of the crime of murder."

"The fourth matter ... is, however, one which you must approach with considerable care. It is not disputed that the accused killed Ms Farnsworth, and you must consider whether it may be that, even if he did so other than by a conscious voluntary and deliberate act, or if he did so neither intending to kill her or intending to cause her really serious injury or if he killed her, having completely lost all self-control as a result of provocation ... he might still have acted as he did and said the things that he did. He might have sought to dispose of the mallet and wash his trousers from a sense of panic and from a sense of responsibility for Ms Farnsworth's death, even if what occurred was not a conscious voluntary and deliberate killing, and even if what occurred was manslaughter, not murder. He might simply have acted stupidly in the aftermath of the dreadful act of killing Ms Farnsworth. He may have acted in panic or bizarrely and irrationally, particularly, you might think, if his blood glucose levels were fluctuating.

You will know that simple denial is a basic defence strategy to which many people resort from an early age in life when they have done something wrong. The accused may have acted as he did, lastly, for some personal reason, such as that he simply wanted to stay with Nicholas for a last period of time. ...

You must be satisfied that the only reasonable explanation for the accused behaving in the way that he did or telling deliberate lies as to his own whereabouts and his knowledge of the killing of Ms Farnsworth was his consciousness or awareness that he was responsible for the murder of Ms Farnsworth before you can treat these matters as giving rise to an inference that the accused has demonstrated a consciousness of responsibility of the commission of the crime of murder."

**46 Without going further, we should say that it appears to us, in the passage which we last cited, that the learned judge fully explored the matters that must have been excluded before the jury could reason to consciousness of guilt of murder. His Honour might have said that the Crown asked the jury to infer that the conduct stood in proof that the applicant's actions had been conscious, voluntary and deliberate, or in proof of murderous intent, or as negativing provocation, or as negativing unlawful and dangerous act manslaughter. But, with respect, what his Honour said invited the jury's consideration of those very issues.

47 The jury asked several questions when in the course of its deliberations. One of them was for clarification how the post-offence conduct could be taken into account in particular with reference to the third element of murder - that is, proof of murderous intent.

48 Concerning proof of intention, the judge re-directed the jury in part, as follows:**

"Now I come back then to the question of intention. An individual's intention may be deduced by a jury from the acts which are actually performed by that person, both before, at the time of and after the point in time in which the intention is in issue. The jury may also have regard to what a person may have said, either at the time of the acts or before or after the acts were performed, ...."

49 His Honour then recapitulated matters relied upon by the Crown, and the defence response in each instance. He ended by saying -

"Moreover it was argued by the Crown, that the lies and post killing conduct of the accused were evidence of his consciousness of guilt of murder."

**50 In context, that could not have been other than a direction - with the implied imprimatur of the judge that it was permissible - that the Crown relied upon post-offence conduct in proof of murderous intent.

51 Then, for sake of completeness, his Honour reiterated his earlier charge in respect of consciousness of guilt.

52 Ironically, in light of the ground of appeal now under consideration, an exception to the re-direction was taken by counsel for the Crown, not wholly supported by counsel for the applicant. The learned prosecutor submitted that the jury should be told that it could use the post-offence conduct as going both to proof of intention and to proof of murder itself.

53 In the event, the learned judge gave this re-direction:**

" ... if I did not make clear then I should have that the Crown says that you will be satisfied of the intent required for the crime of murder on the whole of the evidence and that that evidence includes evidence of post offence conduct and lies.

The Crown contends that the evidence as to post offence conduct and lies amounts to an admission of the crime of murder including the specific intent required for that crime. So in that way the evidence as to post offence conduct and lies is part of the evidence that is relied on in relation to element three, which you have asked a question about."

54 In our opinion there is a point at which directions to a jury are so fulsome that complaint about their inadequacy, not perceived by experienced counsel at trial, becomes remote from and unrelated to the proper conduct of a trial. We consider, without going further, that by the time his Honour had re-directed, such a point was reached in this matter. But for sake of completeness we should also refer to one of the directions in which the learned judge canvassed the Crown and defence cases, and in the course of doing so explained the ways in which the Crown sought to rely upon the post-offence conduct. In respect of proof that the applicant killed the deceased by a conscious, voluntary and deliberate act, his Honour in part said this:

"Next, the Crown points to what it says are a coherent sequence of actions on the part of the accused, namely, following Ms Farnsworth home, parking around the corner in other than the accused's usual parking place, entering the house and arguing with Ms Farnsworth over Nicholas in the terms recorded in the record of interview, striking Ms Farnsworth repeatedly and with some precision to the head, striking her when she was both upright and again when she was prostrate, attacking her at different locations in the hall, obtaining the dressing-gown cord and wrapping it twice around Ms Farnsworth's neck, knotting or twisting it back over itself and pulling it tight for at least 15 to 20 seconds, leaving the house relatively shortly thereafter, taking the mallet, driving to St Leonards, a trip of some real complexity, and dropping off the mallet on the way, washing his trousers and drying them, and at about 5 a.m. sitting up and having coffee and biscuits and talking coherently with his sister."

Note the references to the applicant disposing of the mallet and washing his trousers.

**55 To give another example, when referring to the opposing cases concerning the element of intent, his Honour referred to the Crown's reliance on the applicant's post-offence conduct as consciousness of guilt of murder. In context, the reference could only have meant that the Crown was relying upon such conduct in proof of murderous intent.

56 It is true that in directing the jury about the second and third elements of murder his Honour was there summarising certain arguments advanced for the Crown. But it is unrealistic to imagine that his Honour would not have directed the jury that the arguments were legally untenable, if such had been his opinion; or that the jury would not have understood from the directions that the arguments were there to be accepted or rejected as the jury considered appropriate.

57 In all, as we have said more than once, we consider that the charge did not suffer from the asserted defect.**

**58 Counsel for the applicant accepted, as he had to do, that at the outset of his directions concerning consciousness of guilt the learned trial judge had charged the jury that, with respect to each impugned item of conduct, it had to be satisfied of four crucial matters beyond reasonable doubt. But he submitted that by then directing the jury that the Crown relied upon the various items of post-offence conduct (including lies) both individually and cumulatively, the jury could well have been led to believe that it could combine a number of individual items of post-offence conduct to reach satisfaction beyond reasonable doubt of the matters necessary to enable such conduct to be used to demonstrate consciousness of guilt.

59 Counsel accepted, again, that a jury need not be satisfied of impugned post-offence conduct or its materiality beyond reasonable doubt where such conduct is relied upon as demonstrating consciousness of guilt as part of an overall circumstantial case,[5] although for "prudential reasons" a jury may be directed that it should not act on evidence of consciousness of guilt unless satisfied of it beyond reasonable doubt.[6]

60 But, counsel submitted, where post-offence conduct is relied upon by the Crown as an indispensable link in a chain of reasoning towards guilt, the jury must be satisfied of its character, and that it reveals consciousness of guilt, beyond reasonable doubt.[7] That, he contended, was this case, as could be discerned from "the extent of evidence of post-offence conduct introduced into the trial, and its prominence in determining the issues facing the jury". It was in this setting that the risk arose, counsel argued, that the jury might have been distracted from a correct approach by his Honour's reference to the Crown's reliance on items of post-offence conduct both individually and cumulatively.

61 Counsel for the Crown submitted, in response, that this was a "strands in the cable" case, and so, in accordance with Edwards[8], the jury might -**

"accept the evidence [of a lie or other impugned post-offence conduct] without applying any particular standard of proof and conclude that, when they consider it together with other evidence, the accused is or is not guilty beyond reasonable doubt."

**62 Nonetheless, counsel submitted, whether for "prudential reasons" or for some other reason, the learned trial judge had in fact directed the jury that, before it could use any item of impugned conduct to infer guilt of murder, it must be satisfied beyond reasonable doubt of the four critical matters with respect to that item of conduct. His Honour had said this more than once in his charge and again in his answer to the jury's questions.

63 To our mind there is no substance to this aspect of the criticism of his Honour's directions. This was not an "indispensable link in the chain" case. But even if it was, his Honour's charge would have been entirely adequate. His Honour directed the jury more than once in the terms of the first passage which we cited at [45]. Moreover, having told the jury that the Crown relied upon identified matters "both individually and cumulatively" his Honour directed the jury as follows:**

He repeated that direction when answering the jury's questions.

64 Against the background of the direction which his Honour gave at the outset, we think it is unrealistic to imagine that any member of the jury could have understood the direction which we have just repeated as permitting use of a particular item of post-offence conduct (including a particular statement) except if the four matters pertinent to that item of conduct had been proved beyond reasonable doubt.

Ground 2 - The admission of evidence of the assault in July 2000 and Ground 3 - The directions as to propensity evidence

The Trial Judge erred in admitting evidence of an isolated remote incident occurring in July, 2000 as relationship evidence (Revised Ruling, 21/2/2005."

The learned trial judge erred in his directions to the jury concerning the manner in which they might consider and use the evidence of a prior assault/assaults of the applicant upon the deceased."

**65 Ground 2 concerns the decision of the trial judge to admit evidence as to the incident in July 2000 in which the applicant assaulted the deceased. Ground 3 concerns the directions given by the trial judge to the jury in relation to that evidence.

66 Apart from the evidence relating to the incident in July 2000, the Crown adduced a substantial body of evidence as to the general relationship between the applicant and the deceased. That evidence disclosed that there were a number of difficulties in the relationship particularly in the period of approximately one year or so which preceded the deceased's death. There were tensions between the applicant and the deceased, principally arising out of the frequency with which the deceased attended at gambling venues. On a number of occasions the applicant expressed, to a variety of witnesses, his concern about how the children, and particularly his son Nicholas, were being cared for by the deceased. He expressed his concern and frustration about the deceased's gambling and her care of the children. Some of the witnesses observed disagreements between the couple. Most of the witnesses confirmed that, on those occasions, it was the deceased who was the verbal aggressor in the relationship, and that the applicant on those occasions attempted to placate her. One witness stated that the deceased had a bad temper, that from time to time she would blow up, and that the applicant was always trying to calm her down. The applicant had told some of the witnesses that he wished to obtain custody of his son Nicholas because he was concerned for his wellbeing.

67 Some sixteen witnesses gave evidence relating to the incident of July 2000, which is the subject of grounds 2 and 3 of the notice of appeal. Of those witnesses only two could be said to be, even in part, direct witnesses to the incident. The other evidence as to the July 2000 incident consisted of what the applicant had told witnesses, or what the deceased had told witnesses, relating to that incident. Some of the witnesses were either unable to specify an approximate date of the incident, or placed the incident at having occurred at some other date. However it is clear enough that all the witnesses were giving evidence about the one incident only, which in all probability occurred in or about July 2000. It is necessary to summarise the evidence of those witnesses briefly.

68 Cheryl Potts, a next door neighbour, gave evidence that on a night in August-September 2000, while she was at home, she heard screaming coming from the back of the house occupied by the deceased and the applicant. She heard a female voice, which she believed to be the deceased's, scream words to the effect "don't", "stop", "don't hurt me". On the following afternoon the deceased visited Mrs Potts at home. The deceased told Mrs Potts that she had told the applicant that she was tired of his laziness, that he was no good to the other children, that he must leave. Thereupon the applicant attacked her and threatened to hit her with a hammer. The deceased showed Mrs Potts bruising around her shoulder, shoulder blades and neck. At the deceased's request Mrs Potts took photographs of those witnesses which were tendered in evidence. In cross-examination Mrs Potts stated that the deceased told her that the applicant had held her in a headlock around her neck, and, while doing so, threatened her with a hammer.

69 Another neighbour, Mavis Nicholson, also recalled the deceased, in 2000, coming to her home and showing her some bruises on her upper arm. The deceased told Mrs Nicholson that the applicant had thrown her through the door.

70 Mark Farnsworth, the first husband of the deceased, stated that on 25 July 2000 the applicant visited his home in an unkempt and messy state. The applicant told Farnsworth that there had been an altercation with the deceased. The applicant seemed to be embarrassed and ashamed of his actions. Farnsworth and the applicant discussed the issues relating to the children, money, the deceased's gambling, and the applicant's responsibilities. After the applicant left, Farnsworth received a telephone call from the deceased who told him that she had kicked the applicant out of her house because he had bashed her up.

71 Two friends of the applicant, Paul and Monica Ivelja, gave evidence as to an occasion when the applicant visited their home in Torquay late in the evening in October 2000. When the applicant arrived Paul Ivelja was still at work. He appeared to have been crying and he told Monica Ivelja that the deceased and he had had a fight. He cried in front of Monica Ivalja. She noticed some scratches on the back of his hand. Mrs Ivalja stated that the event occurred in October 2000. She recalled that it occurred then, and not in July, because it was warm on the evening on which she was visited by the applicant. In cross-examination Monica Ivalja stated that the applicant was distressed with himself and upset that the incident had occurred when the children were present.

72 Paul Ivelja stated that when he arrived home late in the evening the applicant said that that the deceased and he had had an argument, that the deceased was "going at him", and that he hit the deceased. In cross-examination Mr Ivelja stated that the applicant was crying when he (Ivelja) arrived home and that he was remorseful for his actions.

73 Mark Trewin gave evidence that on one occasion the applicant told him that in 2000 the deceased had fallen off a small staircase. On another occasion when the deceased visited Mr Trewin, she told him that she had some bruising around the back.

74 Kerry Kovacevic stated that on one occasion in late August or early 2000 the applicant came to her home and said that he had done something stupid. He said that he had tried to strangle the deceased. He said that he had lost it with her, had overstepped the mark and tried to strangle her. He said that the deceased saw a doctor about her injuries afterwards. Some days later the deceased telephoned Ms Kovacevic and confirmed that the applicant had tried to strangle her. About 10 days later the deceased came to Ms Kovacevic's home and showed her brown coloured bruises around her neck. The deceased told Ms Kovacevic that the applicant had threatened her and had held a hammer to her head. She was very upset and shaking. The applicant told Ms Kovacevic that she had kicked the applicant out. She said that Robert Mitchell was staying at her house as she feared if the applicant would come back.

75 The other witnesses who gave evidence concerning the July 2000 incident were witnesses as to what they were told by the deceased about the incident. The deceased's first ex-husband, Robert Mitchell, stated that he received a telephone call from the deceased in late July 2000. She sounded very upset. She said that the applicant had bashed her and had threatened her with a hammer. The deceased asked Mitchell to come to her house because she was afraid that the applicant might return. Mitchell went to the deceased's house in Chelmsford Avenue. The deceased was emotionally upset, and was distraught and shaking. She had bruising on one side of her neck. She requested Mitchell to stay the night because she was fearful that the applicant might return.

76 Robert Mitchell's stepmother, Sharyn Mitchell, stated that from time to time she looked after the deceased's children at her own home. On one occasion in 2000 the deceased told her that the applicant had held her by the throat and threatened to bash her head with a hammer. The deceased told Sharyn Mitchell that they had had an argument and showed her bruising on the throat, shoulder and upper left hip.

77 In the evening of 28 July the deceased attended at the home of Mardi Keogh with her children. The deceased was pale and quiet. Keogh took the deceased into her kitchen and asked her what was wrong. The deceased commenced to shake and cry. She opened the top of her shirt and revealed bruising on the left side of her neck. The bruises were finger shaped and were red and blue in colour and appeared to be recent. When the deceased pulled her shirt open further, Mrs Keogh observed bruising around the back of her shoulders and down her back. The deceased told Mrs Keogh that the applicant had threatened her with a hammer and that she was very scared.

78 Around this time the applicant called at the home of a friend of the deceased, Marcelle Sharp. He said that he was looking for the deceased. On a weekday Marcelle Sharp saw the deceased at a petrol station. The deceased was in a distressed state and wanted to tell Ms Sharp something. A couple of days later, in July 2000, the deceased arrived at Ms Sharp's house. She was in a distressed state. When she pulled down her pants and took off her tee-shirt, Ms Sharp saw bruising to the neck, legs, arms and back which she described as being "pretty much everywhere". The bruising varied in colour and was black, blue and yellow. The deceased told Sharp that the applicant had hit her and tried to strangle her. The deceased said that she thought that the applicant was going to kill her. She was very distressed at the fact that he would kill her. She said that she had kicked him out of the home.

79 In August 2000 the deceased's father, Brian Denmead, observed bruises around the deceased's neck. The deceased told her father that the applicant had tried to strangle her with his hand, and had a claw hammer in his other hand. The deceased told her parents that she had told the applicant to leave and that he had become irate.

80 The deceased's brother, Chris Denmead, stated that he was told by the deceased in the latter part of 2000 that the applicant had beaten her, thrown her against the wall, and grabbed her by the throat. The deceased said that she had asked the applicant to leave.

81 William Butler, the bar manager at the Grand Hotel in Port Arlington, had known the deceased for about 12 months. Approximately six months before March 2001 the deceased had shown him bruises on her back and arms and said that they had been caused by the applicant.

82 Susan Gladwell stated that when she visited the deceased in 2000 she was told that the applicant had tried to strangle her and had threatened to kill her. The deceased showed Ms Gladwell her bruises which Ms Gladwell described as "quite nasty bruises". The deceased said that the applicant had been asked to leave.

83 The evidence to which we have just referred was admitted into evidence in the first trial, against the objection of counsel for the accused. The learned trial judge in that trial gave a detailed ruling[9] summarising that evidence, and stating the bases upon which his Honour admitted the evidence in that trial. His Honour observed that the evidence as to the incident of July 2000**

" ... may be seen as providing cogent evidence of a relationship which have the capacity to generate a high level of antagonism between the parties; antagonism which manifested itself in an equally highly level of violence".[10]

**84 Further his Honour held that the incident in question might be regarded as sufficiently proximate in time to the date of death of the deceased. The evidence was relevant as to the issues of intent, and also as to the issue of provocation. In relation to the latter issue, the evidence was relevant to the state of mind of the deceased. In particular it was relevant as to whether the deceased was so fearful of the applicant that it was unlikely that she would have initiated any wrestle with the accused or used the type of words attributed to her by the accused in his record of interview. When the matter came before the Court of Appeal on the last occasion,[11] the admission of that evidence was not the subject of any ground of appeal.

85 In the present case, the admissibility of the evidence was again the subject of detailed submissions before the learned trial judge. The prosecutor sought to sustain the admissibility of the evidence on the same bases as for those on which it had been admitted by the trial judge in the first trial. In response it was principally submitted that the evidence was prejudicial, and that, because the incident in question occurred some eight months before the date of the deceased's death, its relevance was insufficient to outweigh prejudicial effect. Thus it was principally, if not solely, argued that the evidence should be excluded in the exercise of the learned trial judge's discretion. After considering those submissions, the trial judge adopted the reasons of the trial judge in the first trial, and ruled that the evidence was admissible. His Honour expressed the view that the "sensitivities" forming the basis of the defence submissions were capable of being addressed by directions which would adequately protect the accused against untoward prejudice arising from the admission of the evidence.

86 On appeal, it was submitted on behalf of the applicant that the incident of July 2000 was so remote in time from the date of the killing that the evidence as to it was not relevant to any of the issues in the case. Alternatively it was submitted that, because of the period of time which had elapsed between the date of the alleged incident and the date of the deceased's death, and because the deceased and the applicant had resumed cohabitation in the interim, the evidence as to that incident was of such limited probative value that it ought to have been excluded in the exercise of the trial judge's discretion.

87 It is well established that, in a case involving an alleged offence arising out of or in the course of a marital or defacto relationship, evidence as to the background relationship between the accused and the victim is admissible provided it is relevant to an issue between the Crown and the accused. It is insufficient for the evidence to be admissible simply on the basis that it relates to or bears upon the relationship between the accused and the victim. Rather, as evidence arising from the relationship, it must as a matter of logic add to or detract from the probabilities of the Crown case in respect of one or more of the elements of the offence which must be established by the Crown. Those principles are not in dispute, and derive from cases such as Wilson v R;[12] R v Iuliano;[13] R v Hissey;[14] R v Anderson;[15] R v Frawley.[16]

88 In Anderson's case, Winneke P (with whom Phillips and Chernov JJA agreed) stated that such evidence is particularly relevant where the state of mind of the accused at the time of the offence is in issue. In that case the accused was charged with the murder of a woman with whom he had had a volatile and violent relationship over a number of years. The principal issues at the trial concerned self defence and provocation. The Crown led evidence of the relationship disclosing that the accused had assaulted and threatened and abused the deceased during that relationship. The trial judge directed the jury that the evidence was relevant to assist them to understand the relationship between the accused and the deceased and to assist them to understand what was in the minds of both the accused and the deceased. That ruling was upheld by the Court of Appeal. Winneke P stated:[17]**

"In my view his Honour was correct to have admitted the evidence which he did on the basis which he did. In cases of this kind, where the parties have been living together for a substantial period of time preceding the events in question, courts have traditionally admitted evidence of the pre-existing relationship between them provided that it has a bearing on the facts in issue. This is particularly so where the evidence is relevant to the state of mind of the accused at the time when the acts alleged occurred. Thus such evidence has been admitted to prove motive or to establish the intent of the accused, or negative a defence of accident self-defence or provocation. Such evidence can be admitted either for or against the interests of the accused. It would be contrary to common sense, for example, to exclude evidence which pointed to an entirely harmonious and compatible relationship between the accused person and his wife or partner if such evidence was relevant to the defence of the accused person: Wilson v R at 337 per Barwick CJ. Likewise it would be contrary to reason and common sense to exclude evidence of previous violent acts by the deceased towards the accused person, or others, if such conduct had a relevance to the issues at trial: see R v Knowles [1984] VicRp 67; [1984] VR 751."

**89 In cases of murder, the admissibility of evidence as to relationship has been upheld, not only where it bears on issues such as whether the accused had the requisite mens rea, or whether the accused might have been acting in self defence or under provocation, but also on issues such as whether an accused had a motive to intentionally murder his or her victim. Thus in Wilson v R, the issue was whether the accused fired the fatal shot, or whether the firearm discharged after the accused had placed it on a haystack. In R v Hissey the question was whether it was the accused who had struck the fatal blow to the deceased. In both cases the admissibility of prior relationship evidence between the accused and his victim was upheld on the basis that it bore on the issue of the motive of the accused.

90 As stated by Winneke P in Anderson's case, evidence as to the previous background between the parties is also relevant as to the state of mind of the deceased at or about the time of the killing. In particular it may be relevant whether the deceased might have engaged in conduct attributed to her by the accused as instigating the chain of events which culminated in her death[18]. Thus in Anderson's case Winneke P[19] observed that the evidence was admissible to enable the jury to understand the relationship between the parties, and thus to enable them " ... to better evaluate the respective intentions with which the parties had acted on the night in question".

91 It is of course essential that the evidence must be logically relevant to the issue in respect of which it is admitted. In particular, the evidence as to the previous conduct of the accused or the deceased must be sufficiently proximate in time that, "reasonably viewed", it tends to support the Crown case in a relevant respect.[20] Thus in Tsingopoulos's case,[21] disparaging remarks made by the accused about the deceased in 1957 and 1959 were held to be irrelevant to the issue whether the accused, in 1963, murdered his wife. The Full Court held that there was insufficient connection between the statements made by the accused and the accused's state of mind at the time of the killing.

92 In this case, from the outset, there were three principal issues between the Crown and the accused. After the Crown prosecutor had opened the case to the jury, the applicant's counsel made a short opening. On that occasion he placed squarely in issue both the question whether the actions of the applicant in killing the deceased were conscious and voluntary, and also the question whether they were accompanied by the necessary intention to kill the deceased or cause her really serious injury. In respect of each issue counsel for the applicant had told the jury that the question was "what was going on in Mr Gojanovic's brain". In particular he submitted that the question was whether the accused was in a hypoglycaemic state such that, on the date of the offence, he was acting autonomically, and whether his actions were conscious and voluntary. (In preliminary submissions on the admissibility of the evidence, counsel had also foreshadowed relying on accident as a possible explanation for the applicant's conduct). Alternatively he submitted to the jury that the question would be whether the applicant's judgment and rationality were so impaired by his hypoglycaemic state that at the time of the killing he had not formed the requisite intention to kill or cause really serious injury to the deceased.

93 In that context it is clear that evidence as to the background between the deceased and the applicant was relevant. Indeed, apart from the evidence relating to the July 2000 incident, evidence as to the relationship generally was adduced without objection, and correctly so. In that context it was obviously relevant to admit evidence as to whether or not the relationship between the accused and the deceased was harmonious or volatile. Thus it was relevant to admit evidence as to the existence of tension and animosity between the applicant and the deceased. In particular, in our view, it was clearly relevant to adduce evidence of any incident in which the antagonism existing between the applicant and the deceased had been such as to erupt in an act of physical aggression or violence of a type which occurred on the occasion of the July 2000 incident. In the context of those issues, the existence of a troubled and fraught relationship, culminating in such an act of violence, was relevant to providing an explanation for the conduct of the accused man on the date of the offence. More particularly, the occurrence of the incident in July 2000, and the fact that that incident had resulted from a high degree of tension between the parties, was relevant to whether the accused, on the date of the offence, had acted consciously and voluntarily, and whether he had acted with the requisite intention to kill or cause really serious injury to the victim. Clearly, where the relationship between the parties had not only been difficult, but had on a previous occasion generated violence of the type inflicted by the accused on the deceased in July 2000, that evidence logically bore on the questions whether the actions of the accused on 13 March 2001 might have been the product of an autonomic state of mind of the accused, and on the question whether his actions might not have been accompanied by the requisite intention to kill the deceased or cause her really serious injury.

94 The main issue raised by the applicant on the appeal was that the incident of July 2000 occurred some eight months before the date of the offence. It was submitted that the incident was insufficiently proximate in time to the offence to enable it to be logically relevant to the two issues to which we have just referred. We do not accept that submission. In the context of a relationship between two adults, the occurrence of the type of violence which occurred in July 2000 was, we consider, clearly relevant as to whether the accused, eight months later, acted consciously and voluntarily, and with the requisite murderous intent, when he carried out the acts which caused the death of the deceased. Ultimately it was a matter for the jury whether the jury considered that that evidence affected the probabilities of the Crown case on either the two issues relating to the mental state of the accused. However the intervening period of eight months was not sufficient to deprive the evidence of any or any significant potential relevance to the state of mind of the applicant at the date of the offence.

95 Nor did the fact that, between the July 2000 incident and the offence, the deceased and the applicant resumed cohabitation, render the evidence of the July 2000 incident irrelevant, or so reduce its cogency that it was of little relevance to the issues in the trial. Notwithstanding that the parties got back together, the tensions between them remained unresolved. So much was admitted by the applicant in his record of interview. The relevance of the July 2000 incident was that it demonstrated the capacity of that tension to erupt in an incident involving significant violence between the deceased and the applicant.

96 Further, the evidence of the July 2000 incident, and the statements made by the deceased about that incident at the time of its occurrence or thereafter were relevant to the state of mind of the deceased. In particular the evidence as to that incident was relevant to the issue whether the deceased was, at the date of her death, in fear of the accused. In turn, that issue was directly relevant to the issue of provocation which, from the outset, was a live issue between the parties. Although, understandably, the applicant's counsel did not open that issue to the jury, it was clear that there was a real prospect that that issue might be left to the jury. In his record of interview, the accused had told the police that over a long period of time he had been endeavouring to control his feelings caused by the conduct of the deceased. He stated that on the night in question he "totally lost" control of his feelings as a result of the conduct towards him by the deceased on that date. He told the police that he had gone to the deceased's place to confront her about her gambling. He said "she treats me with words that ... I wouldn't even say to a dog". He told the police that the deceased started a wrestle with him. She told the accused that he would never have Nicholas, and said to him "get out I'm ringing the police". The accused stated that the deceased's conduct "just triggered a bunch of actions that ... I can't explain it ... it was - but like a pressure cooker ... ."

97 In that context, the Crown was entitled to adduce evidence relating to the issue whether it was likely that the deceased would have acted in the way attributed to her by the accused in his record of interview with the police. It was therefore relevant for the Crown to call evidence as to whether the deceased, on the date of her death, was in fear of the accused. Indeed some direct evidence was led to that effect. When she left the Lord of Isles Hotel in the early hours of 12 March 2001, the deceased requested a security officer, Craig Hay, to walk her to the car. She said that she was frightened to go out by herself because she was afraid that her "ex" might be waiting for her outside. Hay said that he had been walking the deceased regularly over the preceding four weeks to her car at her request. On the night of the deceased's death, it was arranged that Hay would telephone the deceased later on to make sure she had got home safely.

98 The evidence of Hay was direct evidence that the deceased was, on the date of her death, in fear of the accused. The Crown was not obliged to call that evidence in a vacuum, without some reference to evidence which provided the basis for, and the nature of, the fear by the deceased of the accused. The incident of July 2000 was, we consider, relevant for that purpose. It was sufficiently proximate in time, having occurred less than one year before the date of the offence. Further, and importantly, the evidence as to the reaction of the deceased to that incident was directly relevant to the issue whether the incident had engendered significant fear in the deceased of the accused.

99 We therefore consider that the trial judge was correct in concluding that the evidence relating to the July 2000 incident, and the evidence as to statements by the deceased relating to that incident, were relevant to the issues in the trial. As recognised by the trial judge, the admission of that evidence did have the potential to unfairly prejudice the accused. In particular there was a risk that the jury might misuse the evidence unless it were properly instructed by the trial judge. Evidence of the type admitted in this case is capable of inducing a jury to reason improperly that, as a result of that evidence, they should regard the accused as having the propensity or tendency to act violently in the manner disclosed by the incident. In particular there was a risk that the jury might improperly reason from the evidence relating to the July 2000 incident that the accused man was predisposed to attacking the deceased violently, and in particular to strangling her and inflicting injuries of the type which she received as a result of that incident.

100 However, we do not consider that the risk of prejudice to the accused, in this case, was sufficient to have required the trial judge, in the exercise of his discretion, to reject the evidence. In our view, any potential prejudice to the accused could be sufficiently allayed by appropriate directions given by the trial judge to the jury as to the relevance of the evidence, and cautioning the jury against any improper or inappropriate use by the jury of that evidence. Indeed, we note that the same view was held by the Court of Appeal on the last occasion.[22]

101 The question which then arises is whether the judge correctly directed the jury concerning the manner in which they might consider and use the evidence relating to the July 2000 incident. That issue is raised by ground 3 of the statement of grounds of appeal.

102 In the course of the hearing the trial judge gave two short directions to the jury relating to the background evidence, and in particular as to the evidence relating to the incident of July 2000. On 25 February 2005 (the fourth day of the trial), his Honour gave directions to the jury concerning the relevance of the evidence relating to statements made by the deceased in respect of the July 2000 incident. His Honour told the jury that that evidence could not be used by the jury to prove what happened on the date of the incident, but that it was relevant and was received as evidence as to the deceased's feelings towards the accused at that time.

103 Subsequently, on 28 February (the fifth day of the hearing) the trial judge instructed the jury that the evidence relating to the incident of July 2000 was part of the relationship evidence which might assist the jury by providing a context in which to assess the likely states of mind of both the deceased and the accused at the time of the fatal confrontation between them. His Honour instructed the jury that they must not reason that, because the accused was involved in violent acts towards the deceased in July 2000, it is therefore "more likely" that he murdered her.

104 In his final charge the trial judge directed the jury, again, that the evidence as to the background between the accused and the applicant was relevant to assist the jury understand the dynamics of the relationship and to place the jury in a better position to consider the principal issues in the case. His Honour told the jury that the Crown was entitled to rely on the evidence as demonstrating a motive for the accused to intend to kill or cause really serious injury to the deceased, and to provide an explanation for what would otherwise be the extraordinary act of deliberately killing or seriously injuring another person. His Honour directed the jury that the accused was entitled to rely on the evidence as assisting to explain why he wished to confront the deceased in the early hours of the morning, and that the evidence might also bear on the question of provocation.

105 His Honour then cautioned the jury as to how they were not to use the evidence relating to the July 2000 incident. His Honour stated:**

"You have also heard descriptions of the injuries she suffered and have been provided with photographs of some of the bruising. As to each of these matters I direct you that you must not let them lead you to the conclusion that therefore it is more likely that the accused is guilty of murder. You must not conclude that simply because the accused has previously engaged in some violent behaviour, he is more likely to be guilty of murder; and I warn you, that you must be aware there is a very real risk of misusing and overstating the accumulative effect of the evidence of a number of witnesses as to a single incident which occurred eight months prior to the death of Ms Farnsworth."

**106 The complaint by the applicant in relation to that direction is that it did not conform with the "model" directions suggested by Callaway JA in R v Grech.[23] In particular it was submitted that the trial judge erred in failing to specifically tell the jury that they must not reason, from the evidence relating to the July 2000 incident, that the applicant was the sort of person who was likely to have murdered the deceased.

107 The evidence as to the incident of July 2000 was not admitted as "propensity" evidence under s 398A of the Crimes Act. Accordingly it would not have been permissible for the jury to reason that, because the applicant had been involved in an act of violence to the deceased in July 2000, in the course of which he attempted to strangle her, he was a person of violent disposition, and was the sort of person who would intentionally and deliberately strangle the deceased. The question is whether the directions given in this case were sufficient to identify the purpose of which the evidence was admitted, and also to preclude the jury from embarking on such an impermissible process of reasoning.

108 In support of his submissions, counsel for the applicant relied upon the decision of Callaway JA in R v Grech[24] in which his Honour, in the context of relationship evidence, held that, in that case, the jury should have been told, inter alia, that they should not reason that because the applicant had engaged in sexual conduct with his daughter on one or more earlier occasions, "he was the kind of person who was likely to have done so on the occasions charged".[25] However, in the next sentence, Callaway JA cautioned that the direction suggested by him was not intended as a model direction but as a guide to the substance of what was required in the case which was then before the Court. Earlier, his Honour stated:[26]**

"There is no set form of words that has to be used. The direction must be tailored to the circumstances of the case and apparent differences between the formulations in different judgments are often explicable on that basis. An accused is not entitled to a series of directions, each direction reflecting the language of one or other of the authorities."

"If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose."

**110 It is axiomatic that the direction given in each case must depend upon, and be tailored to, the precise issues and circumstances of the case. Further, as the authorities make plain, no precise formula of wording is required in order to properly direct the jury as to the permissible purpose to which the evidence might be put, and to caution the jury against any impermissible use of the evidence.

111 In this case the jury were correctly instructed, in clear and precise terms, as to the permissible use which they might make of the evidence. It was made clear to the jury, both at the commencement of the trial, and in the judge's final directions, that the evidence was relevant only for the purpose of assisting the jury to understand the dynamics of the relationship of the parties. In particular it was pointed out that the Crown relied on the evidence for two specific purposes, namely, to demonstrate motive, and to assist to explain what would otherwise be the extraordinary act of deliberately killing or seriously injuring another person. In that way the jury were clearly and correctly instructed as to the relevance of the evidence, and as to the use which the jury might make of it.

112 As we have pointed out, the issues at the trial related primarily to the mental state of the accused at the time of the killing. In particular, the issues included whether there was a reasonable possibility that the killing was the product of an autonomic mind induced by hypoglycaemia, and whether at the time of the killing the accused, because he was then hypoglycaemic, might not have intended to kill or cause really serious injury to the deceased. In light of those issues, and the evidence that was directed to them, the jury were directed by the trial judge, not just as to the use which they might make of the July 2000 incident but, also, that they must not conclude " ... that simply because the accused has previously engaged in some violent behaviour he is more likely to be guilty of murder ... ". The object of the propensity direction in a case such as this is to preclude the jury from reasoning, from the relationship evidence, that (a) the accused was a person of violent disposition and (b) therefore he was more likely to have murdered the deceased. In this case the direction given by the trial judge contained "part (b)", but not "part (a)" of such a direction. However in the context of the issues, as agitated at the trial, and as explained by the trial judge, in our view the direction given by the trial judge did not need to include "part (a)" to be sufficient to preclude the jury from indulging in impermissible propensity reasoning. In that setting the jury could only have understood the direction given to them - not to reason from the relationship evidence that the accused was more likely to be guilty of murder - as a caution not to indulge in "propensity" type reasoning. It was not necessary - and perhaps even undesirable[28] - that the judge, in specific terms, outline the type and nature of propensity reasoning in which they were not permitted to indulge.

113 Indeed it is significant that counsel for the accused did not object to the form of direction given to the jury by his Honour either on the fifth day of the trial or in the charge. Later, after the jury had retired to consider its verdict, the jury sought redirection on the definition of intention to kill or cause really serious injury. In the course of redirecting the jury, his Honour reminded the jury that they must not let the evidence of the July 2000 incident lead them "to the conclusion that simply because there was an assault at that time, it is therefore more likely that the accused is guilty of murder ... ". Again, counsel for the accused did not take exception to that part of the judge's redirection to the jury.

114 The trial judge and experienced counsel were each well attuned to the issues in the case. In the content of those issues, and in the atmosphere of the trial, his Honour formed the judgment - which was not the subject of objection by trial counsel - that the direction he gave to the jury was sufficient to forestall the jury indulging in prohibited propensity reasoning. It would, we consider, be an artificial exercise in semantics to differ from that direction, and to hold it erroneous or inadequate, because his Honour adjudged that the form of words he used were best designed to meet the risk of the jury embarking on a prohibited line of reasoning.

115 For those reasons, we do not consider that the trial judge erred in directing the jury concerning the relationship evidence, and in particular concerning the evidence relating to July 2000. Accordingly ground 3 must fail.**

"His Honour erred in directing the jury concerning the requirements of the objective limb of the test for provocation.

(a) in confining the characteristics of the ordinary person.

(b) in effectively directing the jury that there is a requirement of 'proportionality' between the provocative act(s) and the act(s) of the [appellant] which caused the death."

116 After emphasising to the jury the obligation of the Crown to exclude beyond reasonable doubt the possibility that the applicant was acting under provocation at the time that that he killed the deceased, his Honour provided the jury with a document setting out the issues in relation to provocation. That document stated as follows.

"The Crown must prove beyond reasonable doubt that:

There was no conduct (acts and/or words) by the Deceased which might have provoked the Accused to strangle the Deceased with the intention to kill or cause really serious injury.

If it is reasonably possible that there was such conduct - the Accused was not in fact provoked by the conduct and strangled the Deceased (with the intention to kill or cause her really serious injury) while in a state of loss of self control.

If it is reasonably possible that the Accused did strangle the Deceased (with the intention to kill or cause her really serious injury) while in a state of loss of self control - the ordinary sober person aged 36 would not have been provoked to do what the accused did (with the intention to kill or cause her really serious injury) by provocation of such gravity as that felt by the accused (the degree of gravity being assessed in all the circumstances of the case including the relationship between the deceased and the accused)."

**117 In addition to the written document provided to the jury his Honour provided detailed oral directions as to what it was that the Crown had to prove beyond reasonable doubt in order to prove that the death of the deceased did not take place under circumstances of provocation.

118 Before distributing the above document to the jury his Honour invited Counsel to make submissions as to the document. Counsel who appeared for the applicant at trial made the submission that in referring to the objective test of whether an ordinary sober person aged 36 would have been provoked to do what the accused did, the fact that the applicant is diabetic was a relevant matter. Thus it was submitted that the jury should be directed that they should consider whether it was reasonably possible that an ordinary sober person, who was a type 1 diabetic, would have lost control and acted as the accused did. His Honour rejected that submission. No later exception was taken to the manner in which his Honour addressed the jury as to the issue of provocation. A formal submission was made to us that his Honour's directions concerning the objective limb of the test for provocation were insufficient and that his Honour was in error in confining the characteristics of the ordinary person to those of an ordinary sober person of the age of the accused. However, counsel for the applicant correctly acknowledged that that submission could not be maintained in the current state of the law.

119 The joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Masciantonio v The Queen expressed the test for provocation in the following terms:[29]**

"Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to loss self control and to act in the way in which the accused did. The provocation must actually cause the accused to loss self control and the accused must act whilst deprived of self control before he has had the opportunity to regain his composure.

It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as to cause an ordinary person to loss self control and act in a manner which would encompass the accused actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death ... The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused immaturity, the ordinary person maybe taken to be of the accused age.

However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting to one person might be extremely so to another because of that persons age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context but it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to loss self control and act in a manner which would encompass the accused actions."

**120 Accordingly, it is beyond argument that his Honour's directions to the jury as to the characteristics of the ordinary man complied fully with the objective test as set out in Masciantonio. His Honour's directions clearly identified the sole attribute of such a person with which the law is concerned as being "the possession of normal powers of self control, having regard to the age of the individual". In confining the characteristics of the hypothetical ordinary person to "the ordinary sober person aged 36" his Honour directed the jury correctly and in accordance with the requirements of Masciantonio. As stated in that case the test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self control required by the law and the characteristics of the ordinary person are merely those of a person with ordinary powers of self control and not the characteristics of the accused.

121 However it was argued further on behalf of the applicant that "effectively" his Honour directed the jury that there is a "requirement of proportionality between the provocative act(s) and the act(s) of" the applicant which caused the death of the deceased. This argument was based principally upon a passage appearing in the charge of his Honour in which, in introducing the issues of provocation to be considered by the jury, he said:**

"The second limit that the law impose(s) is that it (takes) the view that even if you are satisfied that it is reasonably possible that an accused person did act under the sudden loss of self control due to provocation, then you must consider whether there was some proportionality, or in other words, an appropriate relationship between the provocation and what he did in response to it. That proportionality or appropriate relationship is decided by reference to what response the ordinary person might have made to such provocation".

**122 Whilst it is true that since the judgment in Masciantonio it has been established that "the question of proportionality is absorbed in the application of the test of the effect of the provocation upon the ordinary person",[30] his Honour's use of the word "proportionality" must be considered in the context of the whole of his charge to the jury in relation to the issue of provocation.

123 Reference by trial judges to a necessity for proportionality between the provocation and the acts of the accused which caused the death of a deceased, has been the subject of three recent decisions of the Court of Appeal. In R v McKeown[31] the charge given to the jury contained the following statement:**

"As I said, there are two elements or two parts in the concept of provocation. The first is that the acts of the deceased which are said to constitute that provocation caused the accused man to lose his self-control and that the acts causing the killing were done during a period of that loss of self-control. Perhaps, a phrase that is often used is 'a crime in the heat of passion'. The second aspect of this is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act. The provocation must be of a kind that might, in the same circumstances, cause an ordinary person to react in the same way as the accused reacted in this case."

124 In R v Barrett[32] almost identical words were used by the trial judge. Likewise in R v Margach[33] the Court of Appeal came to consider almost the exact words used by the trial judges in R v McKeown and R v Barrett.[34] In R v McKeown Callaway JA, said of the relevant part of the charge:

"there are two difficulties in the last two sentences of that passage in which the objective element is restated. One difficulty is that the jury may not have understood the first sentence as being solely introductory to the second. They may well have thought that proportionality was an essential part of the objective relevance of provocation. The expression "the law will only concede" is a strong expression, to which they are likely to have paid particular attention. The other difficulty is that, in particular coupled with a reference to proportionality, the jury may have thought that "react in the same way" as in the next sentence, meant "reacted precisely the same way". That too, would be a misdirection".

125 Buchanan JA and Vincent JA both expressed their agreement with Callaway JA concerning this passage in the charge. Buchanan JA stated

" ... I also agree with Callaway JA that the trial judge erred in apparently making provocation dependent upon the provocation being proportionate to the acts that caused death and requiring the reasonable man in the position of the applicant to have reacted to provocation in precisely the same way as the applicant".

126 There is, we consider, a clear and significant distinction between the part of the charges given in McKeown, Margach and Barrett, which were held to be erroneous, and the charge on provocation to which exception has been taken in this case. Immediately after the passage which we have quoted above, his Honour continued:

"Therefore, if it is reasonably possible that an ordinary person with ordinary powers of self control might have reacted to provocation of the same gravity in the same way in which the accused reacted, then the Crown will have failed to prove beyond reasonable doubt that the accused was not acting under provocation and the verdict would be not guilty of murder, guilty of manslaughter."

**127 Taken as a whole, the introductory passage of the charge is quite different to that which was impugned in McKeown, Margach and Barrett. It is clear, on any appropriate analysis of the form of words adopted by the trial judge, that it could not be understood as imposing or introducing a super added requirement that, independent of the "ordinary person" test, there was an additional requirement of proportionality. Thus the concern of Callaway JA in McKeown, namely that the use of the word "proportionality" introduced an added requirement to the concept of provocation, does not arise in this case.

128 Having given that introduction to the law relating to provocation, his Honour then gave detailed and extensive oral directions to the jury about each of the two limbs involved in the concept of provocation. His Honour gave to the jury a detailed summary of the evidence relating to the relationship between the parties in reference to the first issue, namely, whether it was reasonably possible that the deceased in fact engaged in provocative conduct which caused the accused to strangle her with the intention to kill her. In that part of the charge his Honour invited the jury to consider all the characteristics of both the accused and the deceased, and to have regard to the evidence relating to their past relationship. His Honour then outlined to the jury the requirement that the prosecution must prove beyond reasonable doubt that the accused, when he strangled the deceased, was not then acting under a sudden loss of self control caused by provocative behaviour by the deceased. Having done so his Honour then turned to what is generally described as the "second limb" of provocation, namely the objective test. His Honour stated:**

"If the Crown has not proved beyond reasonable doubt that the accused did not act under the loss of self control when he killed the deceased, in other words, if it remains a reasonable possibility that he did lose his self control due to the effect of provocation. The last question is: was the provocation such that an ordinary person placed in the position of the accused might have done what the accused did? If that, too, is not a reasonable possibility then the defence fails at that point. That is what I described earlier as being the element of proportionality."[35]

129 His Honour then correctly directed the jury that the question was what an ordinary person "might", and not "would" have done. In doing so his Honour ensured that, on that issue, the onus of proof remained on the Crown. His Honour then continued:

"The ordinary person is one that possesses ordinary powers of self control. You must consider what powers of self control would and an ordinary sober person at the age of the accused at that time possess in the circumstances which confronted the accused on this evening ... If it is reasonably possible that an ordinary person of the age of the accused confronted with what occurred that day and against the background of the relationship between the two parties might have done what the accused did with murderous intent, as I have defined that concept for you, then the Crown has failed to disprove provocation and then the verdict would not be guilty of murder but guilty of manslaughter. I say against the background of the relationship between the two parties, because you are entitled to take account of the gravity or sting of the provocation with which the accused may have been personally confronted. You will have to consider whether taken at its highest any ordinary person at that age with ordinary powers of self control might have intentionally reacted in such a violent way to such provocation as may have been given. The Crown says that the fatal incident was a vicious uncoordinated and disproportionate response to the situation, and no ordinary person could beat the deceased with a mallet to the ground and then get down and strangle the deceased with the deliberate intention of killing her or causing her really serious injury. From the defence point of view, however, you have to look at what occurred in the context of the totality of the circumstances and the gravity of the provocation to the accused man. Were the circumstances, including the pre-existing relationship and the course of its final breakdown relating to (the son of the parties) such as to give rise to a reasonable possibility the ordinary person might have lost self control and strangled the deceased with the intention of killing or causing really serious injury to her?"

**130 It is important to note that in the foregoing passage his Honour expressly stated to the jury that the critical question was whether the provocation was such that an ordinary person placed in the position of the accused might have done what the accused did. His Honour then specifically stated that that is what his Honour described earlier as being "the element of proportionality". Thus, if after the introductory passage relating to provocation, to which we referred earlier, the jury had had any misconception (which we doubt) that proportionality was a separate or additional requirement of the concept of provocation, that misconception would have been well and truly dispelled by the passage to which we have just referred. Further and most importantly any such misconception would have been unequivocally put at nought by the way in which the trial judge characterised the cases of the Crown and the accused in relation to the second limb of provocation. On any rational view, it could not be accepted that the jury could have had any misunderstanding in relation to what his Honour referred to as "proportionality".

131 That conclusion is, we consider, powerfully reinforced by the circumstance that, as stated above, his Honour supplemented his oral directions with a short written document, the contents of which were entirely unimpeachable - as was correctly accepted by applicant's counsel on this appeal.

132 His Honour concluded his oral charge to the jury concerning provocation by specifically drawing their attention to the document.

133 A second danger discerned by Callaway JA in the case of McKeown was that the jury might have thought that the use by the trial judge of the words "react in the same way" coupled with a reference to proportionality meant that the jury were required to consider whether an ordinary person might react in "precisely the same way" as the accused. In our view no such danger arises in the circumstances before us. His Honour stated the objective test in the terms required by Masciantonio correctly where the question to be considered by the jury was stated by his Honour as follows:**

"It is whether an ordinary person could have lost self control to the extent that the accused did. That is to say, the question is whether the provocation measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form the intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it."

**134 Thus, the charge given by the trial judge in this case did not suffer from the second potential "defect" which caused Callaway JA to consider that the charge in McKeown was erroneous. For the above reasons we consider that ground 4 must fail.

135 It follows that the application for leave to appeal against conviction should be dismissed.**

Application for Leave to appeal against Sentence

136 The applicant seeks leave to appeal against sentence on two grounds, the first being manifest excess and the second being that the sentencing judge failed to accord sufficient weight to the fact that the applicant suffers from diabetes.

**137 The applicant submitted that, in light of circumstances that the applicant had no prior convictions, that his prospects of rehabilitation were good, and that, it was argued, he had expressed remorse, the sentence of 20 years' imprisonment with a non-parole term of 15 years was manifestly excessive. In passing sentence his Honour expressly took into account the applicant's lack of prior convictions and his general good character. However, his Honour's considered that "a total lack of remorse" was demonstrated by the applicant. His Honour said that such a lack of remorse was evident at the time of the killing; at the time that the applicant returned to the scene with his son and sought to deceive police as to his involvement in the killing; in the continued and protracted lies to police during the first two hours of the record of interview; and finally in the "self-centred" ultimate confessional statements in which the applicant sought to portray himself as a victim. His Honour observed that at the conclusion of the record of interview the applicant said he felt "relieved after the killing."

138 The sentencing judge referred to the report of psychologist Dr Joblin, and stated that although the applicant no doubt regretted the consequences of the killing, there was no evidence of any expression of true remorse for what he did to the deceased. That is undoubtedly correct.

139 However it is argued that the record of interview contained an expression of remorse whereby the applicant stated "it wasn't meant to be that way" and that the sentence imposed failed to adequately reflect that. It should be observed that the statement "it wasn't meant to be that way" was given in answer to question number 1208 in the record of interview. Prior to that answer the applicant had maintained that he was not responsible for the death of the deceased. Following that statement the applicant confessed that he hit the deceased with a mallet and tied a dressing gown around her throat. In the course of his description of a wrestle he again stated "I didn't want it to be that way". When told that he would be charged with murder he said "I didn't want it to be the way it turned out".

At a glance

Court

Decision date

Before

Source

Judgment (236 paragraphs)

Parties

Cases Cited (7)