R v Gould [2009] VSCA 130

1 Following a six day trial in the Criminal Division of the Supreme Court of Victoria, on 3 October 2007 the applicant was found guilty of one count of manslaughter for which he was later sentenced to seven years and six months' imprisonment, with a non-parole period of five years. He now seeks leave to appeal against the conviction.

2 The offence was committed by the applicant stabbing the victim, Michael Brown, with a steak knife on Sunday, 20 November 2005. Mr Brown died in hospital five days later.

3 The events leading up to the commission of the offence began on the morning of 20 November 2005, when the applicant and the deceased and other friends began to drink together at 34A Aberdeen Road, Macleod. The deceased had lived at that address for some time with Robert Lance, Peter Venn and Lonnie Davis but was due to move out and live with his brother.

4 The drinking started early in the day although, to begin with, it involved only Robert Lance, Peter Venn, Lonnie Davis and perhaps also the deceased's former girl friend. At about midday, the applicant and Slav Monev came to the house and joined in, by which time the deceased's former girl friend had left. Some time later, Peter Venn asked the group to leave because he had weekend access to his daughter. The remainder of the group then moved on to the applicant's home at 1 Portree Street, Macleod and there continued with the drinking.

5 By that stage the deceased had consumed a considerable amount of drink and was becoming increasingly 'paranoid' about his former girl friend and aggressive towards the other members of the group. He continued after that to drink for several hours until he had consumed probably well over a 'slab' of 24 cans of beer.

6 Later that evening, probably between 9.00 and 10.00 pm, the deceased became much more aggressive towards the applicant, and the applicant asked Slav Monev and Lance Venn to take the deceased home, which they did. Lance Venn took the deceased back to Aberdeen Road and stayed with him there for between half an hour and an hour until the deceased told Lance Venn that he was going back to sort the applicant out. He was also aggressive towards Lonnie Davis.

7 The deceased left Aberdeen Road and at about 11.00 pm returned to the applicant's house and banged on the windows. The noise was loud enough to be heard by a witness, Michael Snare, who was about 60 metres away. He thought it sounded like somebody banging on a nearby garage door and then he heard raised male voices.

8 Moments later, Mr Snare noticed heavy footsteps coming toward his front door, and then he saw that it was the deceased and that he was bleeding profusely. Mr Snare gave such assistance to the deceased as he could and called for police and ambulance, after which the deceased was taken to the Austin Hospital for treatment. But the deceased died there on 25 November 2005 of multiple organ failure caused by massive blood loss. It was the result of a single stab wound behind the deceased's left shoulder which had penetrated about six centimetres into his body and 'nicked' his axillary artery.

9 The police traced a trail of blood from Mr Snare's front door to the front of number 1 Portree Street but when they got there the applicant was not present. He was out on bail at that time in relation to other offences involving an assault on a train driver but, following the stabbing, he stopped reporting on bail and stayed away from his home. The police regarded him as a suspect and so obtained a warrant to intercept his telephone calls and they recorded a number of calls which the Crown later relied on at trial.

10 There were two calls which were of particular relevance. One was between the applicant and Gordon Henderson (Call 99) during which the applicant made clear that he had deliberately stopped reporting on bail. The other (Call 113) was between the applicant and Daniel Tavo, during which the applicant told Tavo:

'I'm just waitin' for them to come around, but it's [another] bad thing what I did ... No, but - it was somethin' like I've shived cunt sort of thing'.

11 When the applicant was interviewed by police he acknowledged that he knew the deceased but otherwise made a 'no comment' record of interview. He gave evidence at the trial, however, that the deceased returned to the house and that he went to the front door after hearing knocking on the window. He said that he went onto the porch and that the deceased asked to come into the house but he refused the deceased entry. He claimed that the deceased then rushed at him and that he managed to push the deceased off the porch and that, as he did so, a knife fell to the ground from the deceased. He said that he picked up the knife and held it in his right hand above shoulder height resting on the side of the house as he stood on the porch above the deceased. He claimed that the deceased then rushed at him again, and that he grappled with the deceased while still holding the knife in his hand, and that the deceased then moved back and said 'you got me'.

12 At that point, the applicant said, he went back into the house and noticed a speck of blood on the end of the knife, and so he washed it and threw it into the kitchen sink, but he had not seen it since.

13 The applicant's primary defence was accident and his secondary defence was self-defence or a combination of the two. Plainly, the jury rejected both defences and presumably found that the applicant had deliberately stabbed the deceased, albeit without an intention to kill or inflict really serious injury.

14 Before the jury were empanelled, there was some significant argument as to whether several aspects of the evidence which the Crown proposed to adduce at trial were admissible and, if so, whether they should be excluded in the exercise of discretion.

15 The first was evidence that, although the applicant was out on bail in relation to other offences at the time of the killing, and had been reporting more or less regularly up to the time of the killing, he ceased to report after the killing and absented himself from his residence. The prosecutor submitted that the significance of that evidence was as follows:

PROSECUTOR: ... Your Honour will see there that the Senior Sergeant of police, in charge of the Heidelberg police station, and that Mr Gould commenced reporting on bail in relation to a matter in which he was charged with intentionally causing serious injury and reckless conduct endangering life some time prior to this matter. You will see, Your Honour, that over the page Mr Gould attended bail in June, July, August, September, October and right through until 17 November and that he last reported on 19 November 2005, has not reported at that police station since, and that the stabbing itself, as Your Honour is aware, occurred on the 20th. It is my submission, Your Honour, that it is an important matter for the Crown to raise that post-stabbing or post-event conduct [as] something the jury are entitled to take into account and in a sense it's a little bit like flight, only in this case he did not report to the police station and the Crown say for the [reason] that he was concerned that he might be apprehended by the police if he did report...

HIS HONOUR: It's the general suggestion, isn't it [Mr Prosecutor], of keeping out of the way. It would be - - - ... (indistinct) not being at his home, it's all rolled into one set of circumstances - - - ... [t]hat from the date of the stabbing onwards he kept out of the way.

PROSECUTOR: Indeed that is corroborated by some of the telephone calls in which he makes it quite clear to those he speaks to that he doesn't intend to report because for that very reason, he wants to stay out of the way otherwise he is concerned he might be apprehended by the police officers. It seems to me, with respect, Your Honour, that I should be entitled to lead that. Of course I wouldn't want to lead why he was reporting on bail, but it seems to me that the Crown should be entitled to lead the fact that he was on bail and that he did report regularly until the day prior to the event and that he failed thereafter to report, and it is my submission that the Crown should therefore be entitled to lead that particular evidence for the very reason that Your Honour has expanded [sic] to me.

HIS HONOUR: That is a matter that is in issue?

PROSECUTOR: Yes.

16 Apparently, defence counsel's attitude was that he did not object to adduction of evidence that the applicant had absented himself following the killing, but contended that the evidence of the telephone calls to which the Prosecutor referred should be excluded in the exercise of discretion:

COUNSEL: Your Honour, the evidence that he keeps out of the way may well be admissible in a general sense, but to have a number of calls of non-specific nature when someone else for example is saying 'make sure you're not pinched' is in my submission highly prejudicial, it's not probative of him either keeping out of the way or anything else.

17 The second aspect of the evidence to which defence counsel objected at that stage was tape recordings of a number of the intercepted telephone conversations between the applicant and other persons, including in particular Calls 99 and 113.

18 Call 99 between the applicant and Gordon Henderson on 14 February 2006 was as follows:

Gould: What did you say?

Henderson: Where are ya?

Gould: Just fuckin' walkin' down to the station.

Henderson: Oh, right.

Gould: Yeah.

Henderson: Oh, you're gonna sign on?

Gould: Nah, no.

Henderson: Oh.

Gould: I haven't done that for ages.

Henderson: Ah, Ah, what, you don't have to?

Gould: Yeah.

Henderson: (Laughs) Well what are you fuckin' doing'?

Gould: Well I can't, sort of.

Henderson: Oh, can't ya?

Gould: I can but I can't, I'm not ready to go anywhere yet, mate.

Henderson: Oh, they're lookin' for ya?

Gould: If I go to sign on - if I go to sign on they'll fuckin' probably fuckin' plow me up.

Henderson: Hey?

Gould: If I fuck -

Henderson: Are they lookin' for ya?

Gould: Yeah. Sort of.

Henderson: Ah, they know where you fuckin' are.

Gould: Yeah, I know, but fuckin' if - they have'nt [sic] been around I don't know.

Henderson: Oh shit.

19 Defence counsel's objection to that call was that:

COUNSEL: If one establishes through Sergeant Town that he [the applicant] hasn't reported on bail, and presumably that's the prima facie that it's going to be produced, he had an obligation; here's the book, I've checked the bail book; he hasn't signed on, then this call has no relevance. The fact in issue, if it is to be established, can be established elsewhere without the need to [refer] to this call....

20 Call 113 was made approximately 12 weeks after the deceased's death. It included the applicant telling Tavo about:

'another bad thing what I did ... do you remember ... when we were locked up what I said I did ... [t]he train thing'

'No, but it has somethin' like I've shivved another cunt sort of thing'.

21 Defence counsel made his objection to that call in these terms:

COUNSEL: ...One hundred and thirteen, Your Honour is, I suspect the one that [the Prosecutor] salivates about.

...

COUNSEL: In terms of containing what he would seem to - I think would fairly categorise some of the conversation as an admission. Your Honour, you will see in the bottom quarter of the page, Darren Gould: 'Fucking hell, yeah. Something else has happened.' It's about six, seven eight lines from the top, on the bottom of page 1 being page 440 on the depositions, third exchange...

Now, your Honour, in my submission, that conversation ought be excluded on the basis that it shows propensity for criminal acts. The train thing that he refers to was a matter where he was sentenced by her Honour Judge Gaynor in April 2006 for an incident on the train line where Her Honour accepted that he was drunk and intoxicated [sic], stopped a train and with a part of an umbrella in result of an altercation with the drive[r] stabbed him. Now it reveals propensity, in my submission, and it also, it is highly prejudicial material that is said some two months, three months, after the incident in question...

22 After hearing argument on those objections, and others which it is unnecessary to mention, the judge reserved overnight and the following day delivered a ruling in which he disallowed both objections. As to the evidence of the applicant having failed to report on bail and otherwise absenting himself after the killing, his Honour said this:

[The Prosecutor] ... submitted that the post offence conduct of the accused in not continuing to report on bail and otherwise keeping out of the way of the police, is capable of being used as an implied admission of guilt of the crime of murder. (See R v Ciantar[1]).

The Crown sought to rely upon evidence that the accused had made a number of telephone calls, which had been intercepted and recorded pursuant to warrant, which showed that he was keeping out the way and deliberately not reporting on bail. There are further considerations, it is put by the Crown, that show that the accused was discussing the case with others and encouraging them not to cooperate with the police. It was submitted that such conduct would also be post offence conduct capable of being an implied admission.

[Defence counsel] submitted that the material relating to bail introduced material into the trial which was unduly prejudicial. It should be noted, however, that this was not one of those cases where there was some other 'embarrassing' explanation which the accused could only reveal at great prejudice to his case. As the matter stands, no explanation has been advanced. Matters such as panic, fear, concern about being falsely charged would all have to be considered by a jury. The question is really whether or not the fact that the accused was on bail is of itself prejudicial enough to warrant the exclusion of evidence which is probative. [Defence counsel] has also relied upon the general discretion to exclude evidence, the admission of which would render a trial unfair.

There are several ways of approaching the problem. The Crown submit that it is quite a serious matter not to report on bail. The failure to report is post offence conduct, which, coupled with generally keeping out of the way, does amount to an implied admission; ie it would be open to the jury to conclude, after a proper consideration of the Edwards criteria, that the conduct did amount to an implied admission of murder. I am satisfied that on the authorities it could be used for such a purpose (see Ciantar (above) and R v Jakimov[2]).

The question arises whether or not I should exercise my discretion to exclude the evidence either because its prejudicial value outweighs its probative value or whether it be unfair in all the circumstances to admit it.

It is true that revealing that the accused was on bail is prejudicial. It means, however, no more than the fact that the accused has been charged with a criminal offence. It does not reveal what offence and it makes no assumption of guilt. It is a matter about which clear and rational direction may be given. The jury would need to be instructed that no inference adverse to the accused could be drawn merely from the fact that he happened to be on bail with a reporting condition. It seems to me that, apart from the fact that the accused was on bail with a reporting condition and that he did not report after 19 November 2005, there is no additional prejudice arising from those two facts. It could be made clear that there is nothing unusual about a reporting condition.

The decision by the accused not to report on bail is one which a jury might regard as serious when considering post-offence conduct. It cannot be said to have little or only slight probative value in the circumstances. I would not exercise my discretion to exclude the evidence subject to careful directions which I have foreshadowed.[3]

23 As to call 99 and some other calls with which it was grouped, the judge held that:

Call 99, which was made on 14 February 2006, a transcript of which appears at p 421 of the depositions, was a call between the accused and one [Gordon] Henderson. In that call the following exchange took place at p 422 [his Honour then set out in full the terms of the call as they are set out above, and continued]

That passage is relevant in that it is part of the material which the Crown could use to show that the accused was deliberately not reporting on bail and was keeping out of the way of the police. It touches the question that he was on bail but I have dealt with that matter earlier and do not regard the prejudicial effect of it as outweighing its probative value.[4]

Ground 1: Whether error in admitting evidence of telephone call 113 (Ruling at 78e-78i)

24 Ground 1 was abandoned at the outset of oral argument.

Ground 2: Telephone call 99 and failure to report on bail

25 Counsel for the applicant advanced two arguments under Ground 2: first, that the judge erred in admitting evidence of Call 99 and of the applicant's failure to report on bail; and, secondly, that the judge erred by leaving to the jury as evidence capable of amounting to evidence of consciousness of guilt the applicant's failure to report on bail following the stabbing.

26 As has been noted, the judge held that Call 99 was relevant as showing that the applicant was deliberately not reporting on bail and was keeping out of the way of the police, and thus as evidence of post-offence conduct which, coupled with generally keeping out of the way, was open to be construed as an implied admission of guilt.

27 Counsel for the applicant contended that the judge erred in admitting the evidence because, in counsel's submission, when the evidence of Call 99 was coupled with the evidence of Call 113 it created an overwhelming prejudice to the effect that the applicant was a criminal who had previously stabbed another; a prejudice incapable of being cured by even the most careful directions.

28 We reject that contention. It is clear from the judge's ruling that he considered the possibility of prejudice and thus the possibility of excluding the evidence in the exercise of discretion. But he concluded that the probative value of the evidence so outweighed possible prejudice that the evidence should be admitted.

29 We see no error in that. His Honour's analysis accords with principle.[5] The evidence was plainly of significant probative value to the Crown case and, in our view, the prejudice which it might otherwise have caused was capable of being dealt with by appropriate jury directions, which in fact his Honour gave.

30 Counsel for the applicant contended that the judge was wrong to say that there was no other 'embarrassing' aspect to the evidence. In counsel's submission, it was embarrassing because, in order adequately to explain the contents of Call 99 and why the applicant was avoiding bail obligations, the applicant would have had to delve into the incident which had resulted in the applicant being on bail.

31 We reject that contention too. The Crown did not put any evidence before the jury as to why the applicant was bailed and, in the way in which Call 99 was edited before it was tendered, there was no need for the applicant to explain why he was bailed. Furthermore, the judge expressly directed the jury that they could not draw any inferences from the fact that the applicant was bailed. So, in point of fact, the only concern for the applicant was what he had said in Call 99 about the reason for his failure to report on bail. And as to that, the applicant gave unchallenged evidence in which he said that his reason for not reporting on bail and otherwise absenting himself was because he wanted to spend Christmas with his children and did not want to be put in gaol:

Why did you stop reporting? - - - Because I just - sometimes I didn't report, sometimes for a couple of days anyway, because it was just hard to get to, and I was just - I suffer from depression, I get depressed and all that and after this event happened, I was just getting anxiety attacks, peaking out a bit. And plus it was nearly Christmas and I just wanted to stay out and spend Christmas with my two boys.

32 Counsel for the applicant argued further that, although the prosecutor referred in opening to the fact that the applicant had failed to report on bail and led evidence to that effect from the informant, in final address the prosecutor described the failure to report on bail as 'superfluous' and did not submit in terms that it amounted to evidence of consciousness of guilt. Counsel contended that, in view of the way in which the Crown case thus concluded, the judge erred in leaving the applicant's failure to report as a fact which was capable of amounting to evidence of guilt and by directing the jury that the Crown relied upon it as having that effect.

33 We do not accept that contention either. It is true that the prosecutor did not refer in closing address to the fact that the accused failed to report on bail and otherwise absented himself after the killing. But, as has been seen, the prosecutor argued in advance of the empanelment of the jury to be permitted to adduce evidence of those facts as evidence of consciousness of guilt, and the evidence was admitted on that basis. Otherwise, it would have been irrelevant. Certainly, the prosecutor either forgot or chose not to say anything about it in final address. But it is apparent that both the prosecutor and defence counsel regarded it as still being in issue. Neither of them suggested that his Honour should direct the jury that they were to disregard that evidence as irrelevant,[6] still less took exception to the judge's direction that the Crown relied upon it as evidence of consciousness of guilt.

34 Strictly speaking, it may be right to say that the jury had not heard any argument from the Crown as to the manner in which they were to make use of the applicant's failure to report on bail. Perhaps, that means that the judge went too far in stating that 'the prosecution argued that the accused... acted in a certain way after the crime was committed'. But even if the jury had not heard any argument to that effect, it was implicit in the adduction of the evidence, from which the Crown had not resiled, and so to describe it as an argument was hardly inaccurate.

35 Nor could it be thought that it was productive of any injustice. For as this Court has said recently in other cases, although the general rule is that an Edwards direction should only be given if the prosecution contends that a lie or other post-offence conduct is evidence of consciousness of guilt:

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

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

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

The view expressed in Zoneff was repeated by the High Court in Dhanhoa v R, and the question fell for further consideration by this court in R v Nguyen and R v Chang, where of course it was dealt with in accordance with what the High Court had said in Zoneff and Dhanhoa. In each case it was held that an Edwards direction should have been given notwithstanding that, in Nguyen, the judge had prevented the prosecutor from so characterising the effect of lies and, in Chang, the prosecutor had chosen not so to characterise them.[7]

36 In this case, even if the prosecutor did not argue that the failure to report was evidence of consciousness of guilt, we consider the risk of misunderstanding on the part of the jury as to the use which they might make of that evidence was sufficient to warrant that the judge give the jury a full Edwards direction in respect of it. Thus, whether or not his Honour misdescribed the Crown's position, his Honour's directions on consciousness of guilt were in accordance with law.

Ground 3: alleged lie as to provenance of knife

37 As has already been noticed, the applicant gave evidence that the deceased produced the knife with which he was stabbed. In cross-examination of the applicant, the prosecutor referred to evidence which suggested that there were no knives missing when the deceased left Aberdeen Street and that the knife which the applicant said that he had washed and he put in the sink had in truth been disposed of. In final address, the prosecutor put to the jury that the fact that the knife was missing enabled them more readily to conclude that the applicant's evidence as to having been attacked was 'impossible' and 'manufactured' and that the truth was that the applicant had stabbed the deceased from behind with intent to cause him really serious injury.

38 The judge gave the jury a Zoneff direction in respect of that suggested lie; then added that, in some circumstances, it is possible to treat a lie as an implied admission of guilt; and then continued with a full Edwards direction as to the circumstances in which that may and may not be done.

39 Counsel for the applicant contended that the judge was in error so to do, for several reasons. First, he argued that there was no proof that the knife was not produced by the deceased. The only evidence on the point, he said, was the applicant's evidence that the deceased produced it and, even if the jury rejected that evidence, it did not prove the opposite.

40 We do not accept that contention. The occupant of 34A Aberdeen Street, Mr Davis, gave evidence that there were no knives missing from that address which he could recall. The applicant was unable to explain how the knife which he said he put in his sink had gone missing by the time the police arrived at around 4.00 am the next morning, after he had fled. There was also evidence that the deceased was a large man, approximately six feet three inches tall and weighing 102 kilograms, whereas the applicant was a relatively small man of five feet nine inches and weighed only 72 kilograms. The Crown submitted before the jury that it was improbable that the deceased would have thought it necessary to arm himself with a knife in order to deal with someone as diminutive as the applicant. In reality, the knife could only have come from the deceased or from the applicant and the jury were entitled to reject the applicant's evidence that the knife had come from the deceased. In the totality of those circumstances the jury were entitled to infer that the knife had come from the applicant.

41 It is true the jury could not have been satisfied of that fact beyond reasonable doubt. But it was not necessary that they be so in order to regard the applicant's evidence as to the provenance of the knife as evidence of consciousness of guilt. Contrary to submissions made by counsel for the applicant, the provenance of the knife was not an essential link in the chain of reasoning leading to the conclusion of guilt. It was but one circumstance among a congeries of many on which the Crown relied. And in such a case, as the court observed in R v Ciantar:[8]

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

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

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

42 Secondly, counsel for the applicant argued that the prosecutor described the issue as only going to credit and that it seemed apparent, when the judge discussed the matter with counsel prior to final addresses, that the prosecutor was not intending to rely upon the lie as evidence of consciousness of guilt.

43 We do not think that is correct. The passage of the transcript to which counsel referred as demonstrating that the prosecutor put the lie to the jury as only going to credit was concerned with the applicant's evidence as to where the knife fell, not with who brought the knife to the fight. The prosecutor argued it went to credit because it showed that the applicant was changing his story about how the fight unfolded. The discussion between the judge and counsel prior to final address was to the effect that the judge considered that it would be necessary for him to direct the jury as to how post-offence conduct could be used, and both counsel in effect replied that it was a matter best dealt with by the judge. In our view they were right. As Kirby J observed in Zoneff, the need to give an Edwards direction:[9]

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

44 Thirdly, counsel argued, there was a danger that the judge's directions on this topic would cause the jury to confuse the alleged lie as to the provenance of the knife with the prosecutor's submission in final address that the applicant's account of the mechanics of the fight and stabbing was manufactured. Counsel referred in support of that submission to the decision of this court in R v Dang[10] which concerned an Edwards direction given to a jury in relation to lies which the Court held were incapable of constituting evidence of guilt.

45 With respect, we take leave to doubt that the lies in Dang were incapable of evidencing guilt, at least in the circumstantial sense essayed in Edwards and Ciantar. Whether or not they were, however, the facts in Dang were so far removed from this case that its relevance is surely de minimis. In our view, there was not the slightest risk of the jury confusing what the judge said about the lie concerning the provenance of the knife with the prosecutor's submission about the applicant's manufactured evidence as to the mechanics of the fight. It seems to us from a reading of the charge as a whole that it would have been perspicuous to the jury that the two matters were discrete, and we are strengthened in that view of the matter by the fact that no exception was taken.

46 The nub of Ground 4 is that the judge erred in his directions on unlawful and dangerous act manslaughter by instructing the jury that an act is dangerous if a reasonable person in the position of the accused would have appreciated that the act was likely to expose the deceased to an appreciable risk of serious injury, as opposed to appreciating that the act would expose the deceased to an appreciable risk of serious injury.

47 We accept that the judge was in error in so directing the jury. It is apparent from Wilson v The Queen[11] that the test is that:

For a person to be guilty of manslaughter by an unlawful and dangerous act, the circumstances must be such that a reasonable person in the accused's position would have realized that he or she was exposing another or others to an appreciable risk of serious injury. It is not sufficient that there was a risk of some harm resulting, albeit not serious harm.

48 In the context of this case, however, we do not consider that it is a matter for much concern. Given that the act with which the applicant was charged and on the basis of which he was convicted was the deliberate stabbing of the deceased in the back with a knife, it appears to us that the jury would have taken the instruction 'likely to expose' in the circumstances of this case as meaning 'exposing' to an appreciable risk. Consistently with that view of the matter, it was common ground at the trial that, if the jury were not satisfied of murderous intent, and rejected self-defence, the proper verdict would be manslaughter.

49 That is not to say that the direction which the judge gave in this case could not cause problems in other circumstances. It could and it should not be repeated. Decisions in other areas of the criminal law demonstrate the importance of adhering to the ipsissima verba of High Court formulations.[12] But as McHugh and Gummow JJ observed in Dhanhoa,[13] it is not enough for an appellant to succeed on an appeal against conviction to demonstrate that the trial judge has given a misdirection. To succeed in the appeal, the applicant must establish a reasonable possibility that the failure to direct correctly 'may have affected the verdict'. In our view, in the circumstances of this case, the use of the word 'likely' would not have had that effect.

50 Finally, under Ground 5, counsel for the applicant contended that, upon an examination of the whole of the evidence, the verdict of guilty of manslaughter was unreasonable or against the weight of the evidence. In his submission, it was not open to a properly instructed jury to exclude accident or self-defence, given that the wound was unusual, there was strong evidence that the deceased had come to the applicant's house intent upon violence and, as counsel would have it, the applicant's account of events could not be excluded beyond reasonable doubt.

51 We reject that contention. Given that the jury saw and heard the applicant give evidence, and bearing in mind factors such as the likely provenance of the knife, its unexplained disappearance, the changes from time to time in the applicant's testimony (to which the prosecutor drew the jury's attention in the course of final address), the applicant's disappearance after the killing and the admissions made in the telephone conversations, we are of the view that it was well open to the jury to reject the applicant's version of events as a concoction designed to mask the fact that he did not believe on reasonable grounds that it was necessary in self-defence to do what he did.[14] If so, the jury would have been left with unalloyed objective evidence that the applicant had driven a steak knife, with what the pathologist described as moderate pressure, some three inches into the deceased's upper back; the fact that the knife had mysteriously disappeared; the fact that the applicant had absented himself for fear of being locked up; and the admissions as to having 'shivved [the] cunt' which he made in the telephone conversations. In those circumstances, in our view, it was open to the jury to be satisfied beyond reasonable doubt that the stabbing was a voluntary conscious and deliberate act and that a reasonable person in the position of the applicant would have appreciated that it would expose the deceased to an appreciable risk of serious injury. Doubtless, if the jury had taken a different view of the applicant's evidence, they may have come to a different conclusion. But so far from the verdict being unsafe and unsatisfactory, we consider on the basis of our assessment of the evidence that it was the most likely and appropriate outcome.

52 The application for leave to appeal against conviction will, therefore, be dismissed.

[1] [2006] VSCA 263; (2006) 16 VR 26.

[2] [2007] VSCA 9.

[3] [2007] VSC 421[13]-[19].

[5] R v Christie [1914] AC 545, 559-560, 564; Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, 558-9; The Queen v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 191 [62]-[65]; Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115,125 [39]; Heydon, Cross on Evidence, Australian Edition, [1125].

[7] R v Cuenco [2007] VSCA 41; (2007) 16 VR 118, 122 [15]-[18], citations omitted; and see also R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479, 489; and R v Chang [2003] VSCA 149; (2003) 7 VR 236, 251 [39]-[49].

[8] [2006] VSCA 263; (2006) 16 VR 26, 40 [44]-[46] (citations omitted).

[9] (2000) 200 CLR 234,263 [71] (in diss. but not in principle); see also R v Cuenco [2007] VSCA 41; (2007) 16 VR 118, 123, [15]-[18].

[10] [2004] VSCA 38.

[11] [1992] HCA 31; (1992) 174 CLR 313 (Headnote) (so held by Mason CJ, Toohey, Gaudron, McHugh JJ); R v Lavender [2005] HCA 37; (2005) 222 CLR 67, 75 [17] and 86 [53].

[12] See and compare Heron v The Queen [2003] HCA 17; (2003) 77 ALJR 908, 197 ALR 81, [4], [33] and [75]; R v Thorpe (No 2) [1999] VSCA 172; [1999] 2 VR 719, 724.

[13] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, 18 [60].

[14] Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645, 663-4, 653-4.