R v Heyes [2006] VSCA 86

"I'm going to do a lot of time for these stick-ups and I saw the opportunity so I took it."

6 In addition to evidence which tended to implicate him in the individual robberies, the Court[5] said -

"The evidence which tends to implicate the applicant generally in the series of robberies is his escape and flight from the committal proceedings on 30 March, 1988, and his statement to Krstic at the time of his arrest." (Emphasis added.)

The judgment, in my view, suggests only that the evidence, insofar as it showed Cako's guilt, entitled the jury "if it saw fit, to treat the escape as evidence of a general consciousness of guilt in relation to the five charges".

7 As to Woolley, the defence taken by the three accused was that Dean Rayment (who had pleaded guilty to the murder of the deceased) had acted in a frenzy of his own and that there had been no concert between them to commit murder. The accused were therefore denying any involvement in the murder. I agree with the explanation of Woolley which Buchanan, J.A. has given in paras.[44] and [45]. Of particular significance in my view is the paragraph in the judgment in Woolley[6] -

"Turning back then to what may be described as the threshold question as to whether the conduct, whether it be a false denial or otherwise, is relevant and material, it is not always meaningful to ask whether the accused was betraying consciousness of guilt of the crime charged, for at the point of time when the conduct occurs the accused is presumably not thinking of guilt of a specific offence, much less of a series of alternatives. Rather the question is whether he is betraying a consciousness of being implicated in the actus reus, whether it be the killing or the robbery." (Emphasis added.)

This paragraph is, I think, consistent with what was said by the Supreme Court of Canada in White v. The Queen[7] where R. v. Peavoy[8] was discussed with apparent approval and the earlier decision of the Supreme Court in R. v. Arcangioli[9] was considered and further explained. The judgment in Peavoy should be read in light of the extended discussion of consciousness of guilt in White in the paragraphs mentioned above, dealing particularly with the problems which arise when conduct from which a consciousness of guilt is relied on by the prosecution in cases where offences of differing degree (such as murder or manslaughter) are involved. As the judgment in White clearly demonstrates, conduct showing consciousness of guilt may be relevant and admissible in such a case particularly when the accused has denied any involvement in the facts underlying the charge in issue, or has sought to explain his actions on some lawful basis (such as accident), as against the case where the accused has admitted committing the actus reus of a criminal act but has denied a specific level of culpability for that act.

8 So understood, the decision in Woolley is not, I think, with great respect, authority for the proposition assumed by the trial judge in the present case. Nor did the decision in Rice advance the matter any further, the point there considered being an entirely different one. The trial judge in Rice in his charge to the jury had referred to the use made by the prosecutor of the evidence suggesting consciousness of guilt on the part of the accused and quoted the prosecutor[10] as arguing -

"that because of the type of stories told by Mr Rice and the persistence of them, particularly at a time when he had possession of the body of the deceased, or pointing, he argued, to the proposition that the only proper inference is that he was not simply conscious of some wrongdoing or some fear of being falsely accused, or anything of that kind, but the extent of those untruths and that conduct, together with the circumstances which show that he was in fact the last person to be with her and the person who dealt with her body later on in the way he did, all combined to point to the fact that this goes beyond the inference of just any other consciousness of any other problem, but rather the consciousness of guilt of the killing."

The use of evidence suggesting consciousness of guilt in Rice, is, I think, of exactly the same kind as that referred to by the Supreme Court of Canada in White[11], in part of the paragraph which has been quoted by Buchanan, J.A. at [49]. That paragraph deserves to be quoted in greater detail. Major, J. said:

"The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute. It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused's flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence."

9 This passage illustrates that post-offence conduct may support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts in at least a situation where the post-offence conduct is out of all proportion to the level of culpability admitted. Post-offence conduct may also be relied on where the accused has admitted the actus reus but asserted some justification (such as self-defence). There may be a third possibility, that post-offence conduct may support a distinction between two levels of culpability when the actions of the accused which the jury find proved in the killing of the victim were similarly "out of all proportion to the level of culpability" involved in the lesser offences being considered by the jury. As was also said in White[12] -

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

10 I also agree with the explanation Buchanan, J.A. has given at [47] and [49] of the decision in R. v. Burrows[13]. In that case the accused admitted killing the deceased, but claimed that his death was the result of an accident. The judgment in Burrows includes the paragraph[14] -

"In the present case both counsel and the judge took the view that the applicant's conduct, consisting of flight and disposal of the weapon, was relevant and had probative value. Mr Thomas did not seek to argue the contrary. The question was simply whether the jury had been properly instructed. This is, I think, the correct issue between the parties since, whereas flight alone might have been incapable of supporting an inference of guilt of murder, when coupled with disposal of the shotgun it was certainly capable of doing so. It was much less likely that the applicant would have disposed of the shotgun in panic, embarrassment or fear of false accusation if the killing had been accidental."

11 A case such as the present calls for careful directions from the trial judge, and the evidence of the applicant's lies was capable of being misused by the jury. This could, as Buchanan, J.A. has said, have been averted by appropriate directions from the trial judge. The jury was not, unfortunately, told to limit the use they could make of the evidence, in determining whether the Crown had excluded self-defence, or in considering manslaughter. They should, I think, have been told that they were entitled to infer from the lies told by the applicant that he had killed the deceased illegally. It was necessary to warn the jury that the applicant may have lied simply out of panic, or because his actions had led to the death of the deceased. If the jury

took the view that the applicant's lies might be equally explained by reference to consciousness of guilt of either manslaughter or murder, then the evidence of lies had no probative value with respect to any particular offence. But in my view (and to this extent I am in the minority) the jury should also have been told that they were entitled to consider the evidence as a whole, i.e. the nature of the applicant's actions in his attack on the deceased, as well as his lies and post-offence conduct in deciding whether they were satisfied beyond reasonable doubt of his guilt of murder, to the extent to which they regarded his conduct in the attack and his actions afterwards as disproportionate to the lesser level of culpability put forward in his defence.

12 The applicant seeks leave to appeal against his conviction on a charge of murdering Raymonde Thomas ("the deceased") on 25 June 2002.

13 At the time of the deceased's death the applicant was engaged to and lived with the deceased's sister, Rebecca Thomas. The applicant was 28 years' old, the deceased was 26 years' old and Rebecca Thomas was 20 years' old.

14 The deceased and his mother, Sheryl Thomas ("Mrs Thomas") lived together in a house in Ferntree Gully. Mrs Thomas found the deceased difficult to live with. He drank to excess and used drugs.

15 On 7 June 2002 Heathcliff Wilson, the deceased's half-brother, who was 30 years of age, arrived in Melbourne from Queensland and was accommodated in the house in Scoresby where the applicant lived with Rebecca Thomas. Within the hearing of the applicant Mrs Thomas told Wilson of the deceased's violent behaviour towards her. Rebecca Thomas also told the applicant that the deceased had raped her when she was 10 years' old.

16 According to the evidence given by the witnesses called by the Crown, on 24 June 2002 Mrs Thomas visited her daughter and the applicant at their house in Scoresby and shared the evening meal. When she returned to her house in Ferntree

Gully that night, Mrs Thomas found the deceased in a foul mood. He told Mrs Thomas that her dinner was on the floor in the kitchen. Mrs Thomas found a chop on the floor. Mrs Thomas retired to her bedroom to work. The deceased knocked on the door, walked in and asked if Mrs Thomas had finished her work. Mrs Thomas told the deceased that she had not finished, and he left. Mrs Thomas then telephoned her daughter and told her that the deceased was "in one of those moods and I was sick and tired of it.".

17 At the end of the telephone conversation Rebecca Thomas put down the telephone and told the applicant she thought that her mother was in trouble and that the deceased was doing something to her. Rebecca Thomas went into Wilson's bedroom and found him asleep. She tried unsuccessfully to wake him. She joined the applicant in the sitting room where they watched television. Rebecca Thomas continued to fret. She went back to Wilson's bedroom and again tried to wake him. She spoke to the applicant about her concern for her mother. When Wilson woke, Rebecca Thomas told him about the telephone call from her mother and said:

"I think something is happening at home, like, I mean like you know, with Mum and Ray, and I think Ray's either going to do something or done something."

18 Later that night the applicant and Wilson left to go to Mrs Thomas's house in Ferntree Gully, armed with a knife, a syringe and a mattock, which Wilson dismantled, separating the handle and the head. As they left in the applicant's car, Rebecca Thomas said to the applicant, "just make sure Mum's safe, make sure."

19 At about 2 a.m. the next morning Mrs Thomas was woken by dogs barking. Although her bedroom door was closed, Mrs Thomas heard the voices of Wilson and the deceased. Mrs Thomas telephoned her daughter and asked why Wilson was at the house. Rebecca Thomas told her mother that he was there to save and protect her. Mrs Thomas heard Wilson say loudly, "you raped my fucking sister, you cunt" and heard the deceased say something like "please, stop." Mrs Thomas picked up the telephone and Rebecca told her to go to the applicant, that he was there to get her. Mrs Thomas opened the bedroom door. She saw the applicant coming towards her with a stick in his hand. The applicant told her to get to the car. Mrs Thomas walked to the front door. Wilson was there. Mrs Thomas thought she could see the deceased's legs on the lounge room floor near one of the couches. Wilson told the applicant that the applicant had broken his arm and the applicant replied, saying he was sorry, he didn't mean to do it.

20 The applicant, Mrs Thomas and Wilson drove back to the applicant's house in Scoresby. Rebecca Thomas helped Wilson out of the car and into the house. He complained of pain in his arm. Rebecca Thomas said that one of the men had blood on his hands, face, watch and shoes. Wilson told her that he had stabbed the deceased in the head and the applicant had stabbed the deceased in the stomach. She recalled someone said that the deceased was dead.

21 According to Mrs Thomas there was a discussion as to what they were to say if the police became involved. It was agreed that Mrs Thomas would tell the police that she spent the night in Scoresby watching television and she had slept on the couch. The others were to say that they had remained at the house in Scoresby watching television. Rebecca Thomas said that the mattock handle, which had been taken to Ferntree Gully, was underneath the car upon its return to Scoresby. She picked up the mattock handle and, assisted by Wilson, hid it under the house. It was proposed that Mrs Thomas would take a taxi to the house in Ferntree Gully to collect her shoes for work that day and that she would find the body of the deceased.

22 Mrs Thomas went by taxi to the house in Ferntree Gully. She told the taxi driver that she had gone to her daughter's house, had watched videos and had decided to stay the night. She said she wanted to go home to collect her shoes and then to go to the city. At the house in Ferntree Gully Mrs Thomas left the taxi and entered the house. She then ran back to the taxi looking distraught. She told the taxi driver to ring the police and said that she thought "he was dead". The taxi driver entered the house and found the deceased, who was obviously dead.

23 Later the applicant was interviewed by the police. The version of events he gave to the police was as follows. He said that he was at home with Rebecca Thomas from 6 p.m. on 24 June 2005. He watched television. At 10.30 p.m. they received a telephone call from Mrs Thomas who said that the deceased had gone ballistic and given her a hiding. The applicant drove alone to Mrs Thomas's house and found her waiting outside. He drove her straight back to the house in Scoresby. He said that he was upset that Mrs Thomas had been hurt, for she seemed to be in pain, and to cool off he left the house and went to a hotel on the Maroondah Highway. He met "an Asian mate from Queensland" who was upset about an injury to his back. He took his friend to the Maroondah Hospital at about 3 a.m. Afterwards he took his friend to a motel and returned home at 5.45 a.m. He drove to his employer's place of business and returned to the house at about 10.30 a.m. Police found the blood-stained mattock handle under the house.

24 The applicant was arrested and re-interviewed. He said that after the telephone call from Mrs Thomas, the applicant and Wilson went to her house for the purpose of rescuing her. They knocked on the glass panel next to the front door and spoke to the deceased. The applicant said that he told the deceased that if he continued to behave as he had, they would call the police and have the deceased charged. The door opened and the deceased tried to punch the applicant. The applicant then punched the deceased and they scuffled. They fell to the floor of the sitting room, where the applicant repeatedly struck the deceased in the head. The deceased picked up the mattock handle and tried to swing it at the applicant. The applicant took the mattock handle from the deceased and struck him several times. He said: "I hit him as hard as I could...." The deceased lay unconscious and bleeding. When the applicant left the house the deceased was unconscious but still breathing. The applicant went to Mrs Thomas's bedroom and took her out from the house. The applicant said that he physically tried to restrain the deceased, but he was too strong. The applicant was frightened that if the deceased got up he would "just obliterate me because he is a good 20 or 30 kilos heavier than me and apparently he is very good with his hands."

25 A forensic biologist gave evidence of blood spatters found in the sitting room at the house in Ferntree Gully, which were consistent with the deceased being struck multiple blows with an elongated instrument. A pathologist who conducted an autopsy on the deceased said that his injuries included numerous stab wounds to the scalp, facial wounds, bruising to the neck and fracture of the larynx, numerous facial fractures, defensive wounds to his arms and hands, pattern bruises to his arms, bruising to the legs, a fractured skull and a heavy blunt impact injury to the left lower jaw. He attributed the death to multiple injuries, the fractured skull and associated brain damage, the facial fractures and compression of the neck. Traces of alcohol and methylamphetamine were found in the deceased's blood. As to the injury to the deceased's neck, the applicant said in his evidence that Wilson told him he had stepped on the deceased's neck.

26 The applicant gave evidence at the trial. He said that Rebecca Thomas told him that she had been raped by the deceased when she was between the ages of eight and ten years and that the deceased had assaulted Mrs Thomas. He was told about the deceased's paranoia and violent behaviour, which appeared to be escalating. The applicant said he had been told that the deceased was very strong and a capable fighter. He said he believed that the deceased was insane and that he was an extreme drug user.

27 The applicant said that on the night of 24 June 2002 Rebecca Thomas answered a telephone call from her mother and said to the applicant that she thought that her mother had been bashed. The applicant said that he concluded that if they did not get Mrs Thomas out of the house, she would be killed. Wilson and the applicant decided to go her house in Ferntree Gully to rescue Mrs Thomas. They armed themselves with a mattock handle, which the applicant took into the house to protect himself. When they arrived at the house the deceased spoke to Wilson through a screen door. When Wilson said that he wanted to come in and see his mother, the deceased told him to "fuck off". The deceased threw a punch at Wilson, and Wilson walked into the house.

28 The applicant said he waited outside hoping that Wilson would sort things out. He heard loud voices and a crash. He went into the house to help Wilson. In the sitting room he saw the deceased on top of Wilson on the couch punching him to the head and chest. The applicant ran up and punched the deceased twice in the head to get the deceased off Wilson. The punches had no effect. The applicant panicked and hit the deceased with the mattock handle. His intention was just to get the deceased off Wilson. He hit the deceased as hard as he could. He denied that he intended to kill the deceased or inflict serious injury. He could not recall how many times he struck the deceased on the head with the mattock handle. He stopped hitting the deceased when the deceased collapsed. The deceased had blood on his face but was still breathing. He appeared to be unconscious.

29 When asked why he hit the deceased so hard, the applicant said:

"Because I was frightened of if he got it over Heath then he could get it over me as well at the time and I didn't want to, I didn't want to be - injuries inflicted on myself or anything happening to Sheryl and that was the most important thing. I didn't want anything to happen to Sheryl."

30 The applicant, Wilson and Mrs Thomas left in the applicant's car, the applicant taking the mattock handle. As they were driving home Wilson said that the deceased had been stabbed.

31 The applicants said that when they returned to the house in Scoresby they were panicking and agreed to advance a false story to the police. The applicant was to say that he picked up Mrs Thomas after they watched a film. He said that he was interviewed by the police after he had slept for about two hours and that he had not told the truth to the police and did not mention Wilson's name because Wilson, when he was rambling, had made threats against the applicant, Rebecca Thomas and Mrs Thomas. The applicant said that in the record of interview he omitted to say that he had taken the mattock handle to the house because he was frightened of how it would look. He said that he had left Wilson out of his account of the struggle for the reasons which he had given earlier.

32 At the conclusion of the trial the jury found the applicant guilty of murder and Wilson guilty of manslaughter. After a plea the applicant was sentenced to be imprisoned for a term of 15 years. A non-parole period of ten years was fixed.

Consciousness of Guilt

33 The first ground of the application which was argued was that the trial judge erred in permitting the Crown to rely upon the applicant's agreement to provide a false story to the police, his initial lies to the police and his lies in the record of interview as evidence of consciousness of guilt. The prosecutor in her opening and final addresses relied upon these matters as exhibiting consciousness of guilt. It was submitted on behalf of the applicant that the lies were relevant only to the credit of the applicant: they were incapable of constituting an admission.

34 Counsel for the applicant submitted to the trial judge that the evidence of lies upon which the prosecutor sought to rely could not support an inference of guilt of murder rather than manslaughter. The trial judge ruled against the submission. His Honour said:

"Mr Morrissey submitted to me that I should follow the Canadian case of Peavoy. There it was said that where the after the fact conduct did not make it more likely that murder was committed as opposed to manslaughter, the conduct could not be used as proof of intent to commit murder. I have treated myself as bound by what was said in Cako, Woolley, Rice and Burrows not to take that course."

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

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

36 In Canada it has been held that conduct alleged to exhibit consciousness of guilt cannot be used to determine the level of the culpability of the accused with respect to included offences, that is, a greater and a lesser offence which are alternatives. Thus evidence of flight or lies said to exhibit guilt cannot be led where the issue is murder or manslaughter. As the Ontario Court of Appeal said in R. v. Peavoy[15]:

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

Similarly, in Arcangioli v. R.[16] where the accused admitted common assault but denied having committed aggravated assault, it was held that evidence of his flight could not be led as denoting consciousness of guilt. The evidence had no probative value with respect to any particular offence. The Supreme Court of Canada said that evidence of flight or lies:

" ... can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently, where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of those offences, a trial judge should instruct a jury that such evidence has no probative value with respect of any particular offence."[17]

37 There are decisions to the same effect in Queensland and in England.

38 In R. v. M[18] the accused was charged with one count of rape and two counts of indecent dealing with a girl under the age of 16 years. Davies, J.A., with whom the other members of the Court agreed, said:

" ... I would agree with the appellant's submission that, at the very least, the learned trial judge should have drawn the jury's attention to the special difficulty of inferring from the applicant's flight a consciousness of anything more than indecent dealing. Indeed, it was probably appropriate to tell the jury that they could not safely infer from the flight alone that the appellant was conscious of having raped the complainant."[19]

His Honour went on to hold that in the circumstances of that case, the failure did not produce a substantial miscarriage of justice.

39 In R. v. Richens[20] the appellant was charged with the murder of a man who had allegedly raped the appellant's girlfriend. When questioned about the victim's disappearance, the appellant at first lied to the police. Two days later he admitted responsibility for the killing and at his trial the only issue was whether the killing was murder or manslaughter by reason of provocation. In his charge to the jury the trial judge invited the jury to consider as potentially probative of the Crown's case of murder and as justifying the rejection of the appellant's account of provocation that the accused had tried to conceal his crime, had lied about his involvement and had lied about his reasons for trying to cover up his involvement. Lord Taylor, C.J., delivering the judgment of the Court, said:

"This approach appears to us to overlook the vital and incontestable fact that a man who has killed by reason of loss of self control, and therefore faces arrest, trial and possible lengthy imprisonment, may have almost as strong reasons for attempting to conceal his deed and lie about his involvement as a man who has killed deliberately. ... The point is that the jury should be alerted to the fact that, before they can treat lies as tending towards the proof of guilt of the offence charged, they must be sure that there is not some possible explanation for the lies which destroys their potentially probative effect. Applying that concept to the present case, could the jury be sure that attempts to conceal the killing and lies were inconsistent with the appellant's case that he had killed as the result of provocation, and pointed to murder.

It seems to us that counsel for the appellant is correct when he submits that one has only to pose the question in that way to appreciate that in this case the jury would have concluded that they could not treat the lies as probative of murder rather than manslaughter."[21]

Accordingly the Court held that the trial judge's direction that the jury might regard the appellant's conduct after the killing as probative of murder rather than manslaughter amounted to a material misdirection.

40 With respect, I think this approach is sound. Where the issue is whether the accused performed acts leading to the death of another with an intent to kill or inflict really serious injury on the one hand or merely performed an unlawful and dangerous act on the other hand, evidence of lies will usually be of no help in resolving the issue. There is an explanation for the lies which is consistent with the conduct of a person who is innocent of murder, an explanation which, without more, cannot be rejected. The accused may have lied because he was conscious of his guilt of performing an unlawful act which caused death.

41 I do not regard this approach to use of evidence of conduct exhibiting guilt where there is an included offence as precluded by the decisions which the trial judge said required him not to apply the reasoning in R. v. Peavoy. It is evident that this Court has not developed explicit rules dealing with the relevance to included offences of evidence of conduct said to disclose consciousness of guilt.

42 R. v. Cako[22] was concerned with an appeal from four convictions on counts of armed robbery. After being arrested and charged the accused escaped from the City Watchhouse. The evidence of his escape and flight was said to implicate the accused generally in the series of robberies. On appeal it was contended that the jury should have been directed that they were required to decide in relation to each count whether the escape demonstrated consciousness of guilt on that count. The submission was rejected in these terms:

"I can detect no error in the directions given in relation to the escape. There was no ground for distinguishing between the counts so far as the escape was concerned. The jury was entitled, if it saw fit, to treat the escape as evidence of a general consciousness of guilt in relation to the five charges."

There was evidence linking the accused with each of the robberies. The evidence of the escape and flight was capable of relating to each count on the presentment.

43 In R. v. Rice[23] the issue was whether the accused was guilty of manslaughter by an unlawful and dangerous act. Murder was not left to the jury. The Crown relied upon lies and the concealment of the body by the accused as evidence of consciousness of guilt of manslaughter. On appeal the main debate was as to whether the trial judge's directions complied with the requirements laid down in Edwards v. R.[24] There was no issue as to whether the evidence should have been left to the jury as possibly exhibiting consciousness of guilt.

44 In the course of his judgment in R. v. Rice Brooking, J.A. referred to R. v. Woolley[25]. In that case the accused was charged with murder, and evidence of lies which he told was left to the jury as disclosing consciousness of guilt. On appeal it was contended that the jury should have been directed that the lies might have been told to conceal complicity in some crime other than the crime charged. In particular, it was said, the jury should have been told that the lies might have been evidence of consciousness of guilt of only manslaughter or to being an accessory after the fact, both being alternatives that were left to the jury. The Court of Criminal Appeal rejected the argument. They said:

"There is no authority for the proposition that the accused must be found to have acted out of a consciousness of guilt of a particular offence where the wrongdoing may cover a number of possible charges. Thus, where a serious assault has taken place, it would be fanciful to make a possible resort to the conduct in question by the jury to depend on whether the accused had a consciousness of guilt of particular offences such as causing grievous bodily harm, or actual bodily harm or common assault."[26]

45 The statement appears at first sight to be a refutation of the approach of the court in Arcangioli v. R. The Court, however, went on to say that a jury should consider the evidence said to exhibit consciousness of guilt in respect of each count. They said:

"Thus, the jury would be obliged to consider the evidence relevant to each count separately and so consider as part of this evidence the conduct in question, whether it be lies or flight. No doubt in this process it may be useful to ask whether the conduct portrays a consciousness of guilt of that charge but this is not an obligatory formula. ... Turning back then to what may be described as a threshold question as to whether the conduct, whether it be a false denial or otherwise, is relevant and material, it is not always meaningful to ask whether the accused was portraying consciousness of guilt of the crime charged, for at the point of time when the conduct occurs the accused is presumably not thinking of guilt of a specific offence, much less of a series of alternatives. Rather the question is whether he is portraying a consciousness of being implicated in the actus reus, whether it be the killing or the robbery. ... The critical matters that had to be addressed in the context of this case was that the jury should understand that lies may be told for reasons that do not indicate consciousness of guilt of murder and that the defence explanation of self protection or fear were put to the jury."

It appears that the Court did not consider that evidence of the conduct said to exhibit consciousness of guilt related to the question which of two alternative crimes had been committed.

46 I am inclined to think that it might be asking too much of a jury to deduce from a direction to consider each count separately that lies told by the accused might be relevant to whether he engaged in unlawful activity but not to whether he committed a particular crime. In my opinion where the issues are the commission of an offence and the commission of an included offence, the jury should be directed[27] that they cannot reason that lies or flight support an inference that the accused

committed a particular offence, but bear only upon the question whether the accused was implicated in unlawful conduct.[28]

47 In R. v. Burrows[29] evidence was led of post-offence conduct consisting of flight and the disposal of the weapon used to kill the deceased. The accused admitted killing the deceased. His defence was that the death was the result of an accident. Both murder and manslaughter were left to the jury. Thus the jury was required to determine whether the accused formed the intention to kill the deceased or cause him really serious injury, whether the accused was guilty of manslaughter by an unlawful and dangerous act and whether the accused was innocent because the death was the result of an accident. This was not a case where the post-offence conduct could be explained by consciousness on the part of the accused that he had engaged in unlawful activity. The Court formed the view that the post-offence conduct in this case was relevant only to murder and not to manslaughter. Charles, J.A., with whom the other members of the Court agreed, said:

"I do not think the post-offence conduct could have advanced the prosecution case of manslaughter."

48 Accordingly, I do not think we are precluded from applying the Canadian authorities. I think, however, that the proposition that conduct alleged to exhibit consciousness of guilt cannot be used to determine the accused's level of culpability with respect to included offences should be qualified in two respects.

49 The first is that, while usually the conduct will be equivocal, pointing equally to consciousness of guilt of, say, murder or manslaughter, it is possible that in a particular case the evidence may not be equivocal. If the evidence bespeaks guilt of one offence rather than another, admittedly an unusual circumstance, it may be led as relevant to that issue.[30] In White v. R.[31] the Supreme Court of Canada said:

"It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused's flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged."

In my view the possibility is more theoretical than real, particularly where the included offence is manslaughter. It is difficult to imagine conduct that can only be explained by a desire to avoid the consequences of murder but not unlawful killing.

50 The second qualification is that where the issues are not confined to which of two crimes has been committed, but include the issue whether the accused is guilty of any crime, evidence of conduct said to disclose consciousness of guilt may be led as supporting an inference of guilt of unlawful activity. In such a case, though, it is important that the jury be told that they cannot use the evidence to determine the accused's level of culpability, but only to determine whether the accused is culpable at all.

51 In the present case the principal issues were self-defence, provocation and whether the applicant had formed the intention to kill or cause really serious injury to the deceased. If the only issue had been self-defence, evidence of lies told by the applicant was capable of supporting the conclusion that the applicant had no justification for killing the deceased[32]. Once the alternatives of manslaughter by an unlawful and dangerous act and as a result of provocation were introduced, however, evidence of the applicant's lies was capable of misuse by the jury. The jury may have used the evidence to determine that the applicant formed the intention to kill the deceased or cause him really serious injury and was not provoked, even though the evidence had no logical bearing on those issues.

52 The danger could have been averted by appropriate directions by the trial judge. In my view it was appropriate to tell the jury that they could not safely infer from the lies told by the applicant either that he was conscious of having formed the intention to kill the deceased or cause him really serious injury or that the applicant had not killed the deceased as the result of a sudden and temporary loss of self-control brought about by acts or words of the deceased. Thus the evidence of lies could not be used to determine that the applicant was guilty of murder rather than manslaughter by an unlawful or dangerous act or as the result of provocation. The lies could only be used in determining the discrete question whether the applicant was justified in killing the deceased in defence of himself or Wilson. If, for example, by reason of the severity of the attack upon the deceased, the jury rejected manslaughter by a dangerous act or as a consequence of provocation, they may have viewed the lies as relevant to the question whether the Crown had rebutted self-defence. Unfortunately, the evidence of the applicant's after the fact conduct was left to the jury as relevant to the question whether the applicant was guilty of murder. The jury was not told to limit the use they could make of the evidence to determining whether the Crown had excluded self-defence.

Concert

53 The applicant was granted leave to add the following ground of appeal:

"The learned trial judge erred in his directions as to criminal responsibility by:

(a) giving no directions as to acting in concert;

(b) giving no directions as to aiding and abetting;

(c) directing them in circumstances where it was not possible to say who perpetrated particular acts, it did not mean that a jury could find no-one criminally responsible; and

(d) directing in such a way, when regard is had to the directions concerning the elements of murder that the jury would assume that the applicant was jointly responsible for the actions of the co-accused."

54 From the prosecutor's opening and final addresses, it is clear that the Crown's primary case was that the appellant and Wilson planned to kill the deceased or to cause him really serious injury and combined to carry out that plan. In his record of interview Wilson admitted that he stabbed the deceased and hit him on the head with the mattock handle although he denied stepping on the deceased's throat. The appellant in his evidence admitted striking the deceased with the mattock handle. He did not admit to being party to a planned assault and denied knowledge of Wilson stabbing the deceased.

55 In my view the jury may well have concluded that the appellant was jointly responsible for all the injuries inflicted upon the deceased. The extent of those injuries would have enabled the jury to more readily find that self-defence had been negated and that the appellant had formed a murderous intent. In my opinion the jury should have been instructed as to the facts to be found before the appellant could be treated as acting in concert with Wilson and thus responsible for his acts.

Inconsistent verdicts

56 In the course of the hearing of the application the question of inconsistency between the verdicts in respect of Wilson and the applicant arose.

57 The primary Crown case was that Wilson and the applicant acted in concert, that is, they planned to and did kill the deceased. As the jury found Wilson guilty of manslaughter, they must have rejected the primary Crown case. In the alternative the Crown contended that each of the accused formed the requisite intention to murder either shortly before or at the time the deceased was killed. Counsel for the applicant submitted that there was no material difference in the evidence admissible against each of the accused and accordingly the verdicts were inconsistent.[33]

58 In my opinion the different verdicts may be readily explained. One possible basis for the verdicts was that the jury reached different conclusions about the issue of provocation in respect of Wilson and the applicant. The trial judge instructed the jury that they were to examine the evidence relating to provocation "separately as to each accused". Rebecca Thomas gave evidence of her revelation to Wilson of her rape by the deceased and an ensuing fight between Wilson and the deceased, which led to Wilson's banishment from his family home. Wilson confirmed in his record of interview that he was affected by the deceased's abuse of his sister and mother. The pathologist's evidence was that the wounds made by the knife wielded by Wilson, although not life threatening, were consistent with a frenzied attack. In his evidence the applicant said Wilson entered the house first. The applicant waited until he heard an argument and then a crash. In my view the jury may have concluded that Wilson had established provocation but the applicant had not.

59 Another possible distinction between the applicant and Wilson upon which the jury may have acted was the question of whether Wilson formed the necessary intent for murder. The pathologist was of the opinion that the applicant caused the death of the deceased by striking him with the mattock handle. The knife wounds did not kill the deceased. Wilson had drunk alcohol and used heroin on the night of the commission of the offence, while the applicant was relatively clear headed. The credibility of the applicant could have been viewed by the jury as compromised by his lies to the police, whereas Wilson may have been seen as giving a truthful account to the police.

60 Overall I am of the opinion that a reasonable jury who applied their minds to the evidence could have arrived at the different verdicts.[34]

61 I am of the opinion that this application should succeed on the ground that the trial judge erred in his directions as to the use which the jury could make of the lies told by the appellant. The conviction should be set aside and the appellant retried.

62 I agree that this appeal should be allowed, the conviction of the appellant set aside and a re-trial ordered. I do so for the reasons advanced by Buchanan, J.A. in his judgment which I have had the opportunity of considering in draft form.

63 I also agree that, in the event that the issue of consciousness of guilt arises in the same form on any re-trial, the trial judge should direct the jury in the manner proposed by Buchanan, J.A.

[1] Unreported, Court of Criminal Appeal, 11 May 1989.

[2] (1989) 42 A.Crim.R. 418 at 423-424.

[3] [1996] 2 V.R. 406 per Brooking, J. at 415-416.

[4] [2003] VSCA 130 at [31].

[5] Per Gray, J. at p.8 of the Court's unreported reasons.

[6] 42 A.Crim.R. 418 at 424.

[7] (1998) 125 C.C.C. (3d) 385 at [19]-[33].

[8] (1997) 117 C.C.C. (3d) 226 at 238.

[9] [1994] 1 S.C.R. 129.

[10] [1996] 2 V.R. at 424.

[11] (1998) 125 C.C.C. (3d) 385 at [32].

[12] At [27].

[13] [2003] VSCA 130.

[14] [2003] VSCA 130 at [27].

[15] (1997) 117 C.C.C. (3d) 228 at 240.

[16] (1994) 87 C.C.C. (3d) 289.

[17] Above at 300 - 301. See also United States v. Myers [1977] USCA5 725; 550 F.2d 1036 (5th Cir., 1977).

[18] [1995] 1 Qd.R. 213.

[19] Above at 223.

[20] [1993] 4 All E.R.877.

[21] Above at 885-6.

[22] Unreported, Victorian Court of Criminal Appeal, 11 May 1989.

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

[24] [1993] HCA 63; (1993) 178 C.L.R. 193.

[25] (1989) 42 A.Crim.R. 418. See also Banks v. the Queen [2003] WASCA 198; Meko v. The Queen [2004] WASCA 159; (2004) 146 A.Crim.R. 131.

[26] Above at 423.

[27] Save in the exceptional case referred to in [49], below.

[28] In R. v. Wehlow [2001] QCA 193; (2001) 122 A.Crim.R. 63 Williams, J.A. referred to the passage in R. v. M. quoted at [38] above. Williams, J.A. pointed out that R. v. Woolley was not considered by the Court in R. v. M. and said: "As the matter was not fully argued before this Court I would prefer to leave open for future determination the question whether the reasoning in Woolley and Rice states the law for Queensland."

[29] [2003] VSCA 130.

[30] That appears to have been the position in R. v. Burrows.

[31] (1998) 125 C.C.C. (3d) 385 at 402 - 3.

[32] See White v. R., above at 403.

[33] King v. R. [1986] HCA 59; (1986) 161 C.L.R. 423 at 434 per Dawson, J.

[34] Osland v. R. [1998] HCA 75; (1998) 197 C.L.R. 316 at 357 per McHugh, J.; R. v. MacKenzie (1996) 190 C.L.R. 348 at 368 per Gaudron, Gummow and Kirby, JJ. See also R. v. Carter [2000] VSCA 6; (2000) 1 V.R. 175 at 193 - 194 per Charles, J.A.