R v Jakimov; DPP v Jakimov [2007] VSCA 9

1 I agree with the reasons advanced by Ashley JA that the application for leave to appeal against conviction and the Crown appeal against sentence should both be dismissed.

2 On 25 May 2005, after a short period of deliberation, a jury found Novica Jakimov guilty of the murder of Kelly Hodge. On 18 August 2005, a plea having been heard in the interim, he was sentenced to 19 years' imprisonment, with a non-parole period of 14 years. Now he seeks leave to appeal against his conviction, whilst the Crown appeals against the sentence passed upon him.

3 By his full statement of grounds, filed on 31 October 2005, the applicant contended that the learned trial judge had erred in his directions to the jury concerning consciousness of guilt. That alleged error was particularized in five ways, namely:

"• (a) in leaving as a lie going to consciousness of guilt the applicant's denial of knowledge of the deceased's vaginal injuries;

• (b) in failing to explain how that alleged lie could be material;

• (c) in failing to direct that an explanation for that alleged lie was that which was put to the applicant in cross-examination in relation to an alleged related lie, namely that he was embarrassed about what his parents would think of him engaging in the type of sexual act that might result in injury (Trial at 486-487);

• (d) in giving confusing directions - for example, in directing that flight was 'being relied upon not as guilt of murder but as a factor to rely upon as supporting the inference as to intent and as to not acting in self-defence' (Charge at 614; see also 615);

• (e) in failing to direct that, before the jury could use the lies or behaviour relied upon as consciousness of guilt of murder, they must exclude the possibilities (i) that the

applicant was conscious of his involvement in manslaughter only and (ii) that he might have wrongly believed he was guilty of murder."

4 When the matter came on for hearing, on 5 September 2006, the applicant sought to rely upon an additional particular, namely that the learned judge erred -

"in leaving lies and other post-offence conduct as going in proof of murder".

5 The particular was founded upon things said by this Court in R v Heyes,[1] which was followed in R v TY.[2] Leave to rely upon the added particular was granted and the Court heard full argument.

6 On 30 November this year the Court published its reasons in R v Ciantar.[3] In that case, consideration was given to the issue discussed in Heyes. The Court's reasons in Ciantar led on to counsel being given the opportunity to make further submissions in the present matter.

7 I noted a little earlier that the Crown appeals against sentence. The sole ground upon which it does so is that the sentence was, as it contends, manifestly inadequate. The Crown calls in aid, in that connection, the gravity of the offence, the alleged failure of the learned trial judge to give sufficient account of aggravating features of the offence, and the giving by his Honour, as it is claimed, of undue weight to mitigating features.

The general circumstances of the matter

8 Before going to the impugned directions, it is necessary to outline the general circumstances of the matter, so as to make it clear what was and what was not in dispute at trial.

9 The applicant, a man born 27 December 1968, and so 34 years of age in August 2003, was presented for trial that at West Meadows, between 19 and 26 August 2003, he murdered Kelly Hodge.

10 Ms Hodge was a 26 year old prostitute. She lived with her grandmother. She was last seen by her grandmother on the evening of Monday 18 August 2003, leaving home to go to her work at about 10.30 pm. She did not return home the following morning, as she normally would have done. When she left home, she was uninjured save for some cuts to her hands.

11 At about midnight on Monday, 18 August, Ms Hodge was picked up by a client. They had sexual intercourse. They were together for about 45 minutes.

12 On 26 August 2003 the body of Ms Hodge was found wrapped and tied in a black sheet, and further wrapped in a red blanket, in a depression or gully not far from the side of Old Sydney Road, Beveridge. A post-mortem examination led the pathologist to opine that she had died as a result of complications of head injury.

13 As at August 2003 the applicant was living by himself at 113 Erinbank Crescent, West Meadows. He was separated from his wife. Certain events led to him being interviewed by police officers on 10 October 2003. At that time he was not a suspect. He told the police that Ms Hodge and another man had gone with him to Erinbank Crescent at around 3.00 am on 19 August. The three of them had used drugs, the two men had consensual intercourse with Ms Hodge, and they had all gone their separate ways later that morning.

14 So, from the outset of the applicant's accounts of events, Ms Hodge had been to Erinbank Crescent on the morning of 19 August.

15 Soon after 10 October 2003, the police determined that the account of the events which the applicant had given them had been untrue. They so concluded after interviewing the man whom the applicant had named as being the other man involved in events concerning the victim on the early morning of 19 August. At trial, I interpolate, the reliability of the second man's account of events - that is, that he had not had any contact with the applicant or Ms Hodge on the morning of 19 August - was not in dispute.

16 In the event, having spoken with the other man, the police attempted to contact the applicant again. They could not locate him. He had moved out of the Erinbank Crescent premises, although he had renewed the lease for six months in July that year.

17 On 17 November 2003 the police executed a search warrant at that premises. They had been emptied. Forensic examination indicated the probability that Ms Hodge's blood was located on the carpet in one of the bedrooms and in the hallway. A front window pane was found broken.

18 In February 2004 the applicant was found working under a false name at a takeaway shop in Lorne. He was arrested. He was interviewed and said that he did not want to change the statement that he had made on 10 October 2003. He told the police that he had mainly been living in his utility, that he had put his belongings into a storage unit in Ballarat, and that he was working in the shop at Lorne for a change of scenery. I pause to say that he was a bricklayer by occupation.

19 The police then searched the applicant's car. There were indications that he had been living out of it, as he had claimed. The police found a card and documents relating to the storage of his principal belongings, and also a passport which gave some indication of its being in the course of fabrication.

20 Some days thereafter police searched a storage unit at Ballarat. They found, inter alia, a blue couch. On the back of the couch there was blood staining which was later associated, by DNA matching, with Ms Hodge.

21 All that I have so far said about the circumstances of the matter was either common ground or not in issue at trial. What was in issue was highlighted by counsel for the applicant in his opening address at trial. Counsel told the jury that it was not disputed that in the early hours of 19 August his client had met Ms Hodge in the context of her being a sex worker, and that they had gone by car to his home. It was not disputed that later in the morning "there are injuries received by Ms Hodge". What was disputed, counsel said, "is that she was murdered". The defence case -

"is that there's a fight. That it started by Ms Hodge and that Mr Jakimov injures her during a fight where he is acting in self-defence and that at no time during that fight does he have any intention of causing her serious injury let alone killing her."

22 Counsel informed the jury that it was the undisputed fact that Ms Hodge had died in the Erinbank Crescent house. When the applicant had realised that she was dead, it was not disputed that "for various reasons, he tries to cover up what's happened". In that connection it was not disputed that the applicant had taken Ms Hodge's body to the place where it was found, and that before doing so he had undressed her. It was also not disputed that he had gathered together whatever he thought might provide a connection between him and Ms Hodge, and that he had disposed of those items. Nor again was it disputed that over the following months he had continued to do and say things designed to try and continue covering up the fact that she had met her death at his house. That had included giving a false story to the police. In all, counsel informed the jury, the majority of the evidence in the case was not disputed. The key issue from the defence point of view was -

"what were the circumstances in which Ms Hodge met her death. Put it another way, did those circumstances amount to murder?"

23 At the trial, the Crown called some 24 witnesses and tendered 16 exhibits. On the defence side, the applicant gave evidence, and a plan was introduced as an exhibit. It is desirable that I refer to a little of the evidence called by the Crown, and to the evidence given by the applicant.

The evidence given by Carole and Nelson Ham

24 In August 2003, Carole Ham, an old age pensioner, lived with her husband in the premises next door to the premises then occupied by the applicant. She gave evidence that at 7 o'clock one morning in August she and her husband were woken by "loud noises, thumping noises going on." It was "just loud thumping, like someone was jumping up and down and running around the house from room to room." Once, she heard a woman saying "Oh God no." She also heard "groaning noises." The noises went on for "just about an hour". She also heard glass breaking and noticed, later on, that the glass beside the front door was "all broken". About mid morning, she thought, she observed the applicant in his garden. She was looking out a window at the time. He did not appear to have any marks or injuries.

25 Mrs Ham was cross-examined to show that she was uncertain as to the date on which the incident occurred, and to suggest that at the time she had associated the woman's voice with the applicant's estranged wife. She described the noises which she heard as "sound[ing] like it was moving from room to room." As to the words spoken by the woman, the witness said that it was "Oh God no", or "Oh my God, no" or "something to that."

26 Nelson Ham, a disability pensioner, gave evidence concerning the incident. He described, as had his wife, verbal "domestics" between the applicant and his estranged wife. But -

"... that one ... it was seven o'clock and it was sort of different because there was initially no noise, just a lot of jumping and thumping and crashing and footsteps running around."

" ... it wasn't a scream but it was loud and said 'God, stop, no more'. Something like that ..."

28 The noises seemed to go on for a long time. It "seemed like an hour", but Mr Ham "couldn't really say." It "just went for a long time."

29 The import of the witness's evidence was that the woman's plea occurred before all the crashing and bashing noises; and, he thought, before he heard the sound of glass breaking.

30 Cross-examined, the witness agreed that he could not recall the precise words which he heard the woman use. He, like his wife, agreed that his police statement was made at a time when he knew that the police were investigating a homicide.

Dr Burke's evidence

31 Dr Burke, a forensic pathologist, performed a post-mortem examination on Ms Hodge's body on 26 August 2003. He described the injuries which he observed, other than a few injuries of no present relevance, as follows:

• A punched-out incised area with a distinctive concave aspect on the right forehead. It had been made by something relatively sharp. A good analogy would be like something done by a cookie cutter.

• A punched-out incised region in the right temporal area, and a patterned punched-out skin injury on the left side of the nose, each of which logically appeared to have been caused by the same implement as that which caused the first injury.

• A laceration, of the kind caused by blunt force, of the skin of the forehead.

• Two black eyes, which could have been associated with other facial injuries, or which could have been discrete injuries.

• A curved, lacerated injury to the right cheek, of the kind caused by blunt force.

• An abrasion injury to the mouth, with bruising inside the mouth.

• Bruising to the right side of the jaw, beneath the ear.

• Abrasions to the right side of the head, between the eye and the ear, of a patterned kind.

• A cut to the left ring finger, "not a very serious injury".

• A small, tiny, loss of skin of the left middle finger.

• A deep cut to the right thumb, two cuts to the right middle finger, and a deep cut to the right ring finger - none of which fitted in with the other injuries observed, and which were consistent with evidence given that Ms Hodge had suffered earlier damage to her right hand.

• Bruising to the back of the right hand and fingers, as is caused by blunt force, and not such as was consistent with Ms Hodge, as the aggressor, having punched someone.

• Extensive bruising over the back of the left wrist and hand, as is caused by blunt force, and not consistent with offensive injury.

• Bruising and a cut in the vicinity of the left knee.

• Abrasion of the lower aspect of the right knee, "the sort of thing when you fall to your knees".

• Two tears just inside the vaginal orifice, measuring up to two centimetres, with associated bruising; a tear implying "blunt force, stretching." The witness was of opinion that it was not consistent with ordinary sexual activity; but said that a colleague who was more experienced in the area of sexual assault had expressed a contrary view. He, the witness, thought that it might indicate the use of a foreign object having been inserted inside the vagina.

• On examination of the scalp, and brain - large bruises over the left and right tempoparietal regions, and the occipital region. A fracture of the occipital bone. Blood underneath the dura, brain swelling, and patchy, traumatic subarachnoid haemorrhage. Severe force, the witness said, would have been needed to fracture the occipital bone.

• Blood and vomit within the airways, as a consequence of the head injury.

32 Dr Burke opined that the cause of death had been complications of head injury.

33 The witness thought that the injuries which he had observed, with a few exceptions of no present relevance, appeared to have been sustained within the same time period. That evidence was of some significance in the context of the truthfulness or otherwise of the applicant's evidence that he knew nothing of those injuries until he learned of them from the post mortem report.

34 In further evidence the witness said that he counted 11 - though it could be more or less - separate blows to the head and face area.

35 I should refer to just a few aspects of his cross-examination. The witness said that he had never previously seen injuries of the "punched out" kind which he had described. Nor he volunteered, had his colleagues. He agreed that the injuries might have been caused by the hollow shaft of a broken umbrella. He agreed also that a fracture of the occipital bone is commonly caused by a person collapsing backwards and hitting the back of his or her head on a hard surface, or the ground. The vaginal injury, he said, could have been caused by a mechanism such as Ms Hodge straddling, or being straddled across, the edge of a wooden item of furniture. The cut on the left hand, he agreed, was similar in kind and age to the cuts on the right hand. All the (recent) injuries, he conceded, could have occurred within five minutes. There was evidence, he said, of Ms Hodge having injected heroin through the tissue between her fingers over a period of weeks to months. Toxicology strongly suggested heroin and methamphetamine use. There was no indication of alcohol use. Heroin, the witness agreed, is a powerful painkiller. Finally, although the witness understandably could not say whether Ms Hodge had held an implement, and had struck someone - that is, in the course of the incident which took place shortly before her death - he could say that the constellation of injuries which he had observed were the consequence of an assault.

36 Re-examined, the doctor expressed the conclusion that the skull fracture, given all the findings present, more likely was the consequence of an assault than a fall.

The evidence of Dr Odell

37 Morris Odell is a senior forensic physician at the Victorian Institute of Forensic Medicine. At relevant times his departmental head was Professor Wells. His work, he said, very considerably involved examination of victims of sexual assaults, and had done so since 1991. He had been shown photographs of the injury to Ms Hodge's vagina, and provided with Dr Burke's post-mortem report. He had not examined Ms Hodge's body. He would say the vaginal injuries "would be extremely rare injuries". They were not, he said, "the kind of injuries that are commonly seen in ... common sexual assault" involving a penis in a vagina. Such injuries were not normally seen "from penile penetration in a mature, sexually experienced woman". Any such injuries are generally in a different area. It was very unlikely that the injuries had been caused by a penis. It would have taken a "very large object" to cause the damage, especially in a sexually mature adult female. It was unlikely that the injury had been caused by coming up against a piece of furniture, unless the furniture had particular characteristics. The injury was in a very sensitive area. He thought it would have been a very uncomfortable, painful injury. Injuries to that area usually bleed quite profusely.

38 Cross-examined, the witness agreed that he had reported that it was not possible to deduce the size or nature of the object that caused the injury.

The applicant's evidence

39 I should now refer to the applicant's evidence at trial. He said that, as at August 2003, he was living alone, although he was committed to trying to improve his relationship with his wife. His drug use had increased during the few months before August.

40 On the evening of 18 August he went to the Casino, and enjoyed success. He noticed Ms Hodge across the table. Some time later they met at the bar. She seemed to be drunk or stoned. He invited her back to his place. He told her that he had drugs there. He thought that was the main reason she agreed to go with him.

41 They drove back to his home in his vehicle and would have arrived at about 3.30 am. He had a beer and she had water. That was in the lounge room. They talked, smoked some "ice" and then had intercourse. At the time they were both naked.

42 Somewhat later, Ms Hodge complained of stomach cramps. She insisted on "scoring" which he took to mean that she wanted heroin. He told her that he did not have heroin. He suggested that she try "ice" instead of heroin. He thought that she was going to leave, and he asked her to stay, offering her $200 if she would stay the night. He also offered her as much ice, speed and cocaine as she wanted. She was happy with that. She calmed down, they had ice, speed, and she performed oral sex on him.

43 But then Ms Hodge was really complaining about stomach cramps. He thought that she meant by what she said that she wanted to "score". He asked her not to go, because it had been a good night until then. She became angry at him and called him an "arsehole" and a "prick". She said that if she had known he did not have heroin she would not have come back to his place. He said that if she wanted to go, then go. This conversation could have occurred about two hours after they got back to his home.

44 Further according to the applicant's evidence, Ms Hodge then collected her clothes and went to have a shower whilst he remained in the lounge room. He began to get dressed. He was in a chair, putting on his boots, when he was struck from behind on the back of the shoulder. As he straightened up, with one hand on a coffee table and one knee on the floor, he was hit again on the right side of the head. As he turned, he saw a flash of yellow and was struck in the middle of the head. He was knocked senseless. After everything had happened, he observed his builder's level on the floor. He had last seen it in the laundry.

45 By now, according to the applicant, he was on his feet, but sort of hunched over. Ms Hodge swung the level at him and he put up his hand to defend himself. He was struck on his right hand "really hard", and on his head as well, by the level. On a coffee table there was a perspex vase that had some plastic flowers in it. His hand contacted the vase, he grabbed it and swung around and must have hit Ms Hodge. He assumed that he had hit her, because the level dropped to the ground. The vase came out of his hand.

46 Ms Hodge began to go through items in her handbag. He thought she was looking for a weapon, and "shit [him]self". He walked towards her, and as he got close he saw a flash of red and was struck to the side of the head. Later he saw that he had been struck by a collapsible umbrella.

47 A fight began. He struck towards her but his injured hand was very painful. He was trying to calm her down or stop her, but they were hitting each other. He hit her to the upper body and head. He ended up with the umbrella handle in his hand, and hit her once. It must have connected her hard, because she "dropped hard" and lay on the floor facing upwards.

48 The applicant gave evidence that he could not say for sure how Ms Hodge had received three quite distinctive injuries to her face. He mentioned the umbrella shaft in that connection, though more as a conclusion based on a present understanding. Nor could the applicant say how many times he had hit Ms Hodge altogether. It had happened very quickly. He would have had to hit her at least ten times.

49 Then, according to the applicant's evidence, he went to the fridge and got ice for his sore hand. He slumped back into a chair and either passed out or fell asleep. When he awoke he noticed that Ms Hodge had moved onto her front, that she had vomited and was in a puddle of urine. He checked her pulse, and there was none. He was "just shattered". Having thought about it, he decided not to go to the police, and that he would try and cover up the incident. He was concerned because of the shame it would cause his family, and also because he feared going to jail.

50 In the event, according to the applicant's evidence, he went to the bedroom and took out a sheet. He undressed Ms Hodge. Then he used a rope to tie a sheet around her body, before wrapping it in the blanket.

51 He described how he collected all the items from the house that night which could provide a link between he, Ms Hodge, and her death. He sorted items into two garbage bags - one containing items that would burn, and others that could be disposed of in a rubbish skip. He described mopping up the lounge room and cleaning it of blood stains, of driving to Beveridge and leaving Ms Hodge's body in a shallow gully by the side of the road. He described driving home, further cleaning up, and then disposing of the rubbish bags, one by burning, and one by dropping it in a work site skip.

52 The applicant said that did not notice that Ms Hodge, after her death, had a clump of hair in one of her hands.

53 He had heard evidence that she had part of a hair brush in her hair when her body was examined. He was extremely surprised to hear about that.

54 Concerning particular injury to Ms Hodge's vagina, the applicant said that evidence given in that connection had also very much surprised him.

55 With respect to his disposing of Ms Hodge's mobile phone to a work acquaintance - it was the discovery of that phone which first led the police to question him - and of telling a work colleague that he had injured his right hand in a work-related incident, the applicant gave explanation. So also he acknowledged that he had been untruthful in his story about a second man accompanying him and Ms Hodge back to his home. He had told the last untruth, he supposed, to "get the spotlight off" him.

56 Concerning his initial statement to the police, the applicant said that he had told a number of lies in order to take the focus of the investigation away from him. He had decided to leave Erinbank Crescent and move to Lorne in the hope of not being found too soon. He had intended to use the passport found in his vehicle, having affixed his own photograph upon it, for use as identification; but not so that he could travel overseas, although it was true that he had told some people in late 2003 that he was going overseas.

57 Then, concerning what he had told the police following his arrest in February 2004, the applicant said that he had continued to lie because he felt that he could not extricate himself. He still felt shame. He did not want to accept responsibility for what he had done.

58 Concluding his evidence in chief, the applicant said that he had not intended to hurt Ms Hodge, let alone kill her.

59 I need not refer to the entirety of the cross-examination, but simply refer to some of its elements.

60 The applicant agreed that this was the first time that he had given the particular account of events, and that before doing so he had been seised of the detail of the Crown case. But he denied manufacturing a story to fit in with unchallengeable evidence. At the same time, of course, he admitted telling a large number of quite detailed lies to the police on the two occasions that he was interviewed.

61 He denied also that he had realized at the outset that Ms Hodge was a prostitute. That, he said, had become apparent when they were at his place. He was not lying about the matter because of what his family might think about him having picked up a prostitute.

62 The applicant admitted that he had told a workmate a lie when saying that he had hurt or broken his hand when falling off a scaffold. The injury, he said, had been sustained during the fight with Ms Hodge.

63 The applicant agreed that he had told the workmate that he had been implicated in a murder, but that he had nothing to do with it. This also, he admitted, was a lie.

64 Further in cross-examination, the applicant said that he had been struck hard on the head a number of times. The spirit-level had been one of the objects used. Nonetheless, according to his evidence he had only bled from a scratch on his nose and from the left inner forearm. He had suffered "decent bruises" to his head, which he saw in a mirror. He could not say whether anyone else could have seen them.

65 Further still in cross-examination, the applicant gave evidence that he could not recall anything specific being said during the struggle with Ms Hodge. She may have yelled out, but he could not recall anything. She had not run away from him. Everything had happened in the lounge room.

66 Concerning the vaginal injuries observed at post-mortem examination, the applicant said that the first he knew of such injuries was from the post-mortem report in the police brief. He had not caused the injuries, nor had any idea how she got them. When they had vaginal sex, she had not appeared to be in pain. He had heard the evidence of Dr Odell that such injuries usually bleed profusely. He had not noticed blood on her underclothes when he undressed her after her death. He "possibly" knew that it would be an issue at trial how Ms Hodge had sustained those injuries. He denied knowing, other things apart, that the vaginal injuries were completely inconsistent with him having acted in self defence.

67 Still further concerning the alleged fight, the applicant described "flailing about" with his arms. He then said that he had not used his right arm, but added that it was possible that he had used his right arm also. He said that he remembered punching Ms Hodge in the head and hitting her with the vase. He may also have used the umbrella. He had no idea how the (part) hairbrush had got into her hair, where it was observed at the post mortem examination. She had hit him a number of times before he retaliated. Blows which she struck with the spirit-level had been very forceful.

68 It had not occurred to him, the applicant said, to run out of the house when he thought Ms Hodge was looking for a weapon in her handbag.

69 At the time of the critical events, he said, he was "high" from the effects of amphetamine and alcohol.

70 At the time of those events, according to his further evidence in cross-examination, he thought that he had to defend himself from Ms Hodge. With hindsight he should have locked himself in a room or run away. He had never intended hurting her. He had just wanted to stop her hurting him.

71 The applicant's evidence at trial thus differed dramatically from the account which he had given the police on 10 October 2003, the accuracy of which he had affirmed in February 2004. Essentially, it averred an absence of murderous intent - indeed, despite the number of blows which he conceded he inflicted upon her, of an intent to do her any injury - or alternatively a killing in self-defence.

72 It is convenient to note, before going further, that Ms Hodge was a woman of slight physique. Dr Michael Burke gave evidence that she was 169 centimetres tall, and weighed 50 kilograms. The applicant, who as I have already noted was a bricklayer by occupation, was much larger and heavier. He gave evidence that his weight in August 2003 was about 78 kilograms. He accepted that he was strong.

Counsel's final submissions

73 One aspect of the Crown's final submissions focused upon the applicant's alleged lies and other post-offence conduct.

74 For the most part, lies which the applicant admitted - and there were many of them - were put as going to his credit. Two lies - one admitted, one denied - were put as having been told in consciousness of guilt of murder, in proof of relevant intent, and as negativing self-defence. First, the applicant's admitted lie, told to a man who employed him, that an injury to his hand, suffered in the incident involving Ms Hodge, had been suffered in an industrial accident. Second, what the Crown alleged, and the applicant denied, was a lie told in evidence that he knew nothing about Ms Hodge's vaginal injuries. The latter, counsel submitted, was a particularly telling lie. For those injuries were such as would negative self-defence.

75 The Crown relied upon some aspects of other post offence conduct as evidencing consciousness of guilt of murder: Cleaning 113 Erinbank Crescent, and disposing of Ms Hodge's body, clothes, and other items linked to the killing. The Crown also relied upon those circumstances as going in proof of relevant intent, and as negativing self-defence. In the last-mentioned connection it relied upon additional conduct - the applicant vacating the Erinbank Crescent premises, going to Lorne, working under a false name, and taking steps to fabricate a passport.

76 Counsel for the applicant, in his final address, submitted that all his client's post-offence conduct had been consistent with the applicant not having intended to kill Ms Hodge, or to do her really serious injury - but was rather explicable by shame, fear of his conduct being misunderstood - and thus of being charged, convicted and gaoled - and of his being locked into a position once he had acted in a particular way and made his first police statement.

77 Specifically concerning the vaginal injuries, counsel submitted that the evidence as to what had caused them was speculative, that Dr Odell had been called in at the last moment to rescue the situation after Dr Burke had said that it was the opinion of an experienced pathologist that such injuries could have been caused by penile intercourse, that the applicant's evidence that he did not know how the injuries had been caused was not a lie, and that vaginal swabs contraindicated the applicant having used a weapon to cause the injuries.

78 In the event, the case was one in which the uses to which the Crown sought to put the different lies, an alleged lie, and other post-offence conduct were clearly defined; as was the response made for the applicant.

The judge's directions

79 The learned trial judge provided the jury with a three page outline entitled "Jury Headings". His Honour then spoke to, extended, and amplified, what was there set out. It is unnecessary to refer to the outline in detail. It can be said that it accurately identified the particular lies - in one case, alleged lie - and other post-offence conduct relied upon by the Crown in proof of consciousness of guilt of murder,[4] proof of murderous intent, and as negativing self-defence; and the issues which the jury needed to consider and determine in that connection.

80 I turn to the oral charge. Relevantly, his Honour directed the jury that there was an issue whether the Crown had proved intent to kill or do really serious injury, and there was an issue whether lawful justification or excuse had been excluded.

81 Concerning intention, his Honour gave a standard direction, in the course of which he briefly touched on the possible significance of post-offence conduct.

82 Then his Honour directed as to the elements of self-defence and provocation, correctly telling the jury that self-defence, but not provocation, had been raised by counsel; but directing the jury that a particular view of the evidence could call consideration of the defence of provocation into play. He explained that counsel's failure to raise the issue was understandable in light of the applicant's denial that he had lost self-control.

83 His Honour then gave this very extensive direction concerning post-offence conduct:

"I need to give you directions about how the law treats evidence of certain kinds of conduct after the event. I refer to evidence of conduct in this case after the killing which can but need not necessarily be treated as a form of admission of guilt. If after a crime, say a theft, an individual says, 'I stole the money, and had no justification for it', that is evidence of a direct admission of guilt. We are concerned here with conduct which is not so obviously an admission of guilt. We are concerned with conduct which may, but need not necessarily be treated as an implied admission of one or more, or even all elements of the crime charged.

I take you away from the present case to give you examples of conduct which can amount to an implied admission of one or more elements of the crime charged, evidence of the disposal of a weapon used in an offence, evidence of a person fleeing from the scene of a crime or evidence of the telling of a deliberate significant lie. And let me put them in a contrived armed robbery situation. Three men are seen to leave a 7/11 and it transpires that there has been a robbery there at knifepoint. A policeman across the road sees the three men leave the 7/11. He knows one and calls out to them. One of the three men drops something in a nearby rubbish tin and walks on but a knife is later found in the bin. The second man runs off immediately in the opposite direction to the policeman. The third man walks over to the policeman and says casually, 'I've just bought some cigarettes at the 7/11.' And that is later proved to be a lie.

Now the evidence of those three items of conduct, the disposal of the knife, the flight, the deliberate lie, can be treated as evidence of implied admissions of elements of a particular crime. That conduct can be seen to be that of a person who is conscious or aware of his guilt and it can be treated as evidence of guilt but only provided certain pre-requisites are met. And because of the need to check that those pre-requisites are met, the conduct which has sought to be relied upon in that regard must be specified so that it can be examined.

Now you must be satisfied that there was the conduct, that it satisfies these other requirements and you will see that I am coming to them. Was there that conduct? Was it deliberate? Does it support the particular intention which the prosecution says that it supports? Was the conduct important not as to a minor matter? And was there no innocent explanation for the conduct?

It is a pre-requisite that the conduct must be shown to have been done for a reason or reason[s] demonstrating guilt and not for some other reason. I need to expand on that because it is the main focus of the defence arguments in relation to after events conduct as put in the final addresses. Great care must be taken to ensure that any inference bearing on guilt as to one or more elements of the crime charged, from conduct after the event, is properly drawn.

Evidence of conduct or lies after a killing can only be used as evidence of guilt if you are satisfied as to the pre-requisites that I have referred to and you are satisfied that there was no other explanation consistent with innocence for that conduct or those lies. You must be satisfied that the accused only engaged in the conduct because he knew that to reveal the truth would implicate him in the crime charged. There can be many reasons other than consciousness of guilt for conduct of the kind specified.

Individuals can behave in ways for a wide variety of motives. Individuals can act after an event in a particular way for a wide variety of motives which are unconnected with any sense of criminal guilt. An individual may well act in a way that might appear troubling for a reason that it is not linked to guilt. He might have an intense feeling of shame. He might be fearful of having to try to explain what is difficult to explain. He might be fearful of the consequences if his explanation was not accepted. Those three factors are to the forefront here because they were advanced by the accused in his evidence before you.

There can be other reasons and I will mention some so that you have a better understanding of the legal principles involved. An individual might just panic for reasons that defy commonsense. He might be apprehensive about what might happen next. He might be fearful of what might happen to him at the hands of other persons. He might be concerned to protect some other person and it has been known for individuals to have a sense of guilt about something which is quite unconnected with the matter before the court. An individual might become frightened of being involved in any kind of incident at all and some people can resort to denying knowledge of anything whatsoever about an incident which is being investigated.

So in summary, conduct by an individual after an event can occur in all manner of circumstances and for all manner of reasons. Before you would be entitled to rely upon conduct after the event by this accused, as indicating consciousness of guilt, you would have to be satisfied that no other interpretation is reasonably open upon the conduct but that it shows such a consciousness of guilt going to one or more elements of the crime charged.

You may draw an inference as to one or more elements in finding that the accused has demonstrated a consciousness of guilt of the commission of the crime of murder if, and only if, you are satisfied, beyond reasonable doubt, after close scrutiny, that the conduct attributed to the accused was indeed engaged in by him, that is there summarised. Was there such conduct as alleged?

Two, that the conduct was deliberately engaged in. If it was mere inadvertence, it doesn't satisfy that pre-requisite. That the conduct related to a matter of importance in relation to the commission of the crime. That where the conduct is the telling of a lie, it is either admitted or there is independent evidence available to establish that it was a lie. I note that that does not appear on my sheet and it should and I just emphasis that. In relation to a lie, it must be either a lie that the accused admits as being a lie or there's independent evidence to establish that it was a lie.

The last requirement is the one that I have been focussing on at some length. The only reasonable explanation for behaving in the way he did was his consciousness or awareness that he was guilty of committing the crime charged, in this case murder. In other words, the statements must constitute an unequivocal acceptance by him of his guilt of the offence with which he is charged. There must be no other reasonable interpretation open in the circumstances.

Now with that background, I turn in this case to the specifics that the prosecution say are the several specific pieces of conduct that you subject to that scrutiny, they being conduct which shows that the accused was conscious of guilt of murder with a slight variation as to the one aspect that is being relied upon not as guilt of murder but as a factor to rely upon as supporting the inference as to intent and as to not acting in self-defence. That is the matter of - as I have got down there - vacating 133 (sic) Erinbank Crescent, moving to Lorne and taking on a false name.

That, in a word, is a kind of flight, but if I go back to reading the whole of the immediate material of what I have got there through. You have got to consider the treatment of an item of alleged after events conduct where the prosecution seeks to rely on this conduct as revealing a consciousness of guilt as it does in relation to the cleaning of 133 (sic) Erinbank Crescent, the disposing of the clothes and other items linked to the killing, the disposing of the body, the lying to Julio Gamo as to having injured his hand in a fall from scaffolding and the lying to the court as to knowing nothing of the deceased's vaginal injuries.

Then there is the treatment which is put differently by the prosecution of an item of alleged after events conduct, where the prosecution seeks to rely on the conduct as the basis for inferring murderous intent and for inferring that there was not a belief that it was necessary to act in self-defence. All of the earlier matters are treated in that regard, but there is added in the vacating of 133 (sic) Erinbank Crescent, moving to Lorne and taking on a false name.

I will come back to the prerequisites, but move to the treatment of an alleged after events lie. As to some admitted lies the prosecution does not seek to rely upon them as evidence of consciousness of guilt and therefore of guilt, but seeks to rely upon them as going to the credibility of the account of the accused in his sworn evidence, and I will come back to that, and I remind you that the prerequisites which apply as to conduct are as set out there. Was there such conduct as alleged? Was it deliberate conduct? Does the conduct support an inference relevant to the requisite intention for murder? Was the conduct important? Was there no innocent explanation for the conduct, and add in, as to a lie, is there independent evidence or is it an admitted lie?

I interpose here that, as I apprehend how it was put to you in the final address in the evidence of the accused, as to the first four matters they were admitted as being conduct, or in the case of the fourth one a lie. The fifth one was hotly contested, so you have to address specifically the issue: was it a lie in that the accused said he knew nothing of the deceased's vaginal injuries?

I now give you a final reminder. The prerequisites are important. You do not make an illogical jump from concluding this was conduct after the event that justifies you in jumping to the conclusion he did that sort of thing, therefore he must be guilty of murder. You have got to go through the process of satisfying yourself as to the prerequisites before you come to the ultimate finding of guilt or before you use it as a stepping stone for the drawing of an inference as to intention or an inference as to self-defence."

84 Then his Honour charged the jury as to unlawful and dangerous act manslaughter. In that connection, also, he addressed post-offence conduct. This is what he said:

"A final word about after events conduct relative to manslaughter. I have given you directions as to the use of after events conduct relative to murder. I said then that you must be careful to link to each element of murder any adverse inference based on any item or items of conduct or any alleged lie or lies demonstrating consciousness of guilt. The same approach is appropriate relative to manslaughter by unlawful and dangerous act. It may serve to assist in establishing the mental element in manslaughter, although not the mental element in murder."

85 The learned judge summarized the Crown' submissions concerning post- offence conduct this way:

"Ms Carlin put to you that the position as to the vaginal injuries was very significant. The accused could not explain them. They could not have been inflicted in self-defence. As Dr Odell made clear, they must have been painful. They were highly unlikely to have been caused by a penis or by coming onto a piece of furniture. You could therefore reasonably infer that they had been inflicted deliberately by the accused."

"Ms Carlin urged you to treat, as further evidence of guilt, how the accused had behaved after the killing. She relied on certain conduct as evidence of consciousness of guilt and therefore guilt. Specifically there were five items, they were the cleaning up of the house, the disposing of the body, the disposing of the clothes and other items linked to the killing, the lie to Julio Gamo as to having hurt his hand in a fall from scaffolding and the lie in evidence as to his not knowing how the deceased suffered the vaginal injury.

As to the first three, Ms Carlin put to you that the accused did those things to prevent a proper forensic investigation. The accused knew that such an investigation would show that his account of being attacked by the deceased could not be right. As to the two lies, she put to you that he knew that telling the truth would implicate him in an intentional killing not done in self-defence.

Ms Carlin put to you that you could also take into account a further item of conduct as being inconsistent with his account of acting in self-defence, that was the account of having moved to Lorne where he assumed a false name. Ms Carlin said that, as to other lies, they should be treated by you as considerations against accepting the accused as a credible witness. His claims as to the reasons for his lying and for his other conduct were not acceptable and should be rejected. You should be satisfied that the accused had intended to kill or really seriously injure the deceased and that he had not acted in self-defence. Your proper verdict therefore was guilty of murder."

86 Then his Honour drew attention to submissions which had been advanced by counsel for the applicant:

"He pointed out to you that Dr Burke had accepted a number of possibilities. One was that the vagina injury was possibly caused by a penis or by external contact."

"He argued that there were good reasons for discounting the evidence of Dr Odell."

"Mr O'Sullivan put to you that you should be very wary about focusing on what the accused did after the killing. If you started by saying, 'He murdered the deceased', what he did later could be seen as confirming that. If you started with an open mind, as you should do, what the accused did later was explicable. A panic reaction was understandable. You should bear in mind that both the accused and the deceased were likely to some extent to have been affected by the drugs they had used. A shame reaction was also understandable.

With hindsight, the options of running out or calling the police were there, but it was understandable that the accused would have thought and acted as he did. He understandably feared that his explanations would not be accepted. He understandably feared that gaol might then result. Once he had taken the first steps towards covering up, he was committed to go that way.

Mr O'Sullivan put to you that the statement of 10 October should be viewed as anything but the statement of a cunning man. It was clear that it would be shown to be false when the police contacted Pat Zaffina. It should be viewed as a desperate ploy to get out of trouble temporarily. In February the accused had just lamely and unconvincingly repeated his earlier story. It was understandable he felt locked in.

Mr O'Sullivan put to you that it was illogical to jump from saying that because the accused did try to cover up, therefore he must have been guilty of murder."

87 Just as Honour's charge correctly identified the different uses to which the Crown sought to rely upon particular pieces of post offence conduct, so his Honour's summary of the points made in that connection by counsel in their final addresses accurately reflected - subject to one possible ambiguity, to which I shall later refer - what they had submitted.

The added ground of appeal

88 The competing submissions on this appeal can now be considered. I begin with the added ground. It was founded upon things said by this Court in Heyes[5] at a time after the judge had charged the jury in this matter.

89 The state of the law in this State as it was before Heyes, and the opinion of the majority in that case_,_ was summarized by a bench of five in the still more recent case of Ciantar[6] as follows:

"Until Heyes was decided the law in this state as to the directions to be given to a jury concerning flight was as established in Woolley and restated in Rice as follows:

'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.'

In R. v. Heyes, however, it was held by majority that where murder and provocation and unlawful and dangerous act manslaughter were all in issue, an accused's post-offence lies could not generally be used to determine that the accused was guilty of murder as opposed to manslaughter by an unlawful and dangerous act or as the result of provocation. In the view of the majority, the lies could only be used in determining the discrete question of whether the accused was justified in killing the deceased in self-defence.

More generally, the majority said, where the issues in a trial are the commission of an offence and the commission of an included offence, lies or other post-offence conduct cannot be used to determine that the accused is guilty of the offence charged as opposed to a lesser included offence, and hence the jury should be directed that they cannot reason that lies or other post-offence conduct support an inference that the accused committed a particular offence; they bear only upon the question of whether the accused was implicated in unlawful conduct."

90 If the majority opinion in Heyes had remained untouched, then the ground of appeal now under consideration must have succeeded. Manslaughter was not just an included offence, it was specifically left to the jury.

91 But in Ciantar[7] the Court dealt with Heyes this way:

"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. And, to the extent that Heyes implies the contrary, in our view it should not be followed."

92 It is unnecessary to recapitulate the detailed reasoning in Ciantar which led to those conclusions. Taking them as the bedrock, it must be concluded that the learned judge in the instant case did not necessarily err in giving a direction which permitted the jury to consider whether the particular post offence conduct relied upon by the Crown, or any of it, bespoke consciousness of guilt of murder. That opens up the question whether the circumstances of the matter made it one of those cases, contemplated by Ciantar, in which it was impermissible for the judge to so direct.

93 Upon that question, I consider that the admitted lie, the alleged lie (if it was to be a lie) and the other post offence conduct upon which the Crown relied, considered in the context of all the evidence, were not "equally consistent with two or more possible offences, or otherwise...intractably neutral." It is not decisive that the post- offence conduct "may not have been enough in itself to sustain an inference that [the applicant] killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind."[8] Evidence to which I have referred in these reasons - I instance the evidence of Mr and Mrs Ham and Dr Burke - bespoke a savage and protracted beating of Ms Hodge by the applicant; a beating most readily compatible with the applicant intending to kill Ms Hodge, or to do her really serious injury. Dr Odell's evidence was to similar effect. So, on one analysis - and despite his protestation that he neither intended to kill or injure Ms Hodge - was the evidence of the applicant. The post-offence conduct relied upon by the Crown fell to be considered in that context.

94 Counsel for the applicant, faced with Ciantar, formally submitted that it was wrongly decided. There was, I think, not much more that he could have said. The evidence overall well-justified the impugned direction. The added ground should be rejected.

Ground 1(a)

95 In support of the contention that the learned judge erred in leaving as a lie going to consciousness of guilt the applicant's denial of knowledge of the deceased's vaginal injuries, counsel submitted that it was not possible to exclude the possibility that the injury occurred in the course of normal sexual activity. Because heroin is a painkiller, he argued, one could not exclude the possibility, in effect, that Ms Hodge might have said nothing to indicate that she was in pain, so that the applicant might not have come to know of the injury. Dr Odell's evidence, counsel submitted, did not gainsay those possibilities.

96 Counsel advanced a second submission concerning ground 1(a): If it was open to say that the applicant had lied, still it was not open to say that the lie demonstrated consciousness of guilt of murder. The prosecutor had so contended, and had relied upon the alleged lie as negativing self defence; but neither the prosecutor nor the learned judge had said anything about the defence of provocation.

97 Questioned by the Court as to what precisely he meant by his reference to provocation, counsel submitted, as I understand it, that the judge had erred in not telling the jury that a possible explanation for the (assumed) lie was that the applicant was conscious that he had killed - whilst intending to kill or to do really serious injury - under provocation, as distinct from being conscious that he had killed - whilst intending to kill or to do really serious injury - though not provoked. Presumably, counsel was speaking of provocation in terms of actual loss of self- control; for the applicant could hardly have understood on 19 August 2003 what the law then understood by the concept of provocation.

98 In my opinion, there was no substance to any of the submissions made for the applicant under cover of this ground.

99 I agree with the submission of counsel for the Crown that there was evidence upon which it was open to the jury to infer that the applicant had relevantly lied. There was the evidence of Dr Burke and Dr Odell to which I have referred, and as well the evidence of the witness Gallios, a client of Ms Hodge, who had intercourse with her not long after midnight on the day of her death. She had exhibited no discomfort at that time - evidence consistent with the evidence of Dr Burke that the vaginal injury had been suffered in the same time-frame as the other injuries caused by the applicant's assault. Even if it could be conjectured that, by reason of use of heroin, Ms Hodge might not have exhibited pain from damage to her vagina which was inflicted by normal sexual intercourse, there was Dr Odell's evidence that such injuries usually bleed quite profusely. The applicant's evidence was that he had noticed no blood on Ms Hodge's clothes in the area of her genitalia when he undressed her. Bear in mind that on his account he had struck her to the head. So blood in the vicinity of her genitalia should hardly have been anticipated by him.

100 Of course, the fact that there was evidence capable of supporting a conclusion that the applicant had relevantly lied does not mean that the jury must have so concluded. Counsel seemed to submit that the jury could not have concluded that the applicant had lied if the evidence admitted even the barest possibility that he had not done so. But that is not the law.[9] I consider, with respect, that the learned judge made it very clear to the jury, in appropriate language, that unless it was satisfied that the applicant had told a deliberate untruth about his having no knowledge of Ms Hodge's vaginal injury then the Crown's reliance upon the alleged lie could go no further. As his Honour said:

"The fifth one was hotly contested, so you have to address specifically the issue: was it a lie that the accused said he knew nothing of the deceased's vaginal injuries?"

101 Next, I do not accept the submission for the applicant that the lie - I assume now that it was one - was incapable of demonstrating consciousness of guilt of murder. The submission implied that the lie should be viewed apart from context. But that is not so. Other evidence bespoke a savage beating of Ms Hodge by the applicant, who claimed that he had intended to do her no harm, and that he had acted in self defence. It was open to the jury to conclude that the applicant had falsely denied that he knew about the vaginal injuries on the morning of 19 August 2003. Once so conclude, it was a permissible step to infer that the denial was grounded in the applicant's concern not to reveal how the injuries had been caused - because that circumstance would both demonstrate his having had an intention at the time at least to do Ms Hodge really serious injury, and stand opposed to his claim of a killing in self defence.

102 I consider also that to accede the submission that the learned judge must have directed the jury, in effect, that the applicant may have lied because he was conscious that he had intentionally killed Ms Hodge at a time when he had lost self-control, would impose an unrealistic and unnecessary burden upon a trial judge. That is particularly so when it was the judge who raised the issue of provocation - it was at odds with the applicant's case of no relevant intent, or else self defence - and where the applicant denied loss of self control. I consider, in this case, that it was quite enough for the judge to give the extensive general warning that he did as to there being many reasons why a person may lie. The case I add, is not like R v Richens,[10] where the only question was whether the accused was guilty of murder or manslaughter by reason of provocation. Nor is it akin to the situation discussed in R v Miah.[11] The Crown did not here rely upon post-offence conduct as telling in consciousness of guilt of an intentional, but provoked, killing.

Ground 1(b)

103 The complaint made under cover of this ground was not that the alleged lie concerning the vaginal injuries could not be material, but that the judge did not spell out how that could be so. In my opinion, the complaint lacks substance. In the Jury Headings Outline, his Honour identified the uses to which the Crown sought to put the alleged lie. In that document, and orally, he stressed the need for impugned conduct to be important. Then, in summarizing counsel's argument, he accurately stated the basis upon which the Crown argued that the alleged lie was material. I do not think, in the circumstances of the case, that he could reasonably be required to have done more. Although directed to a different aspect of consciousness of guilt directions, the observations of Vincent JA in R v Martin[12] should be borne in mind.

Ground 1(c)

104 Under cover of this ground, it was submitted that the learned judge should have referred to a particular possible explanation for the applicant having lied about his knowledge of the vaginal injuries - namely, that he was embarrassed what his parents might think about him for engaging in some kind of sexual act with a prostitute. It was submitted that such an explanation had been put to him in cross-examination, and a particular section of the cross-examination was identified.

105 The submission should not be accepted. The identified passage of cross-examination was not directed to the particular lie. Further, the learned judge directed the jury, in writing and orally, that shame might be an explanation for post-offence conduct relied upon by the Crown - which conduct included the particular alleged lie.

Ground 1(d)

106 Counsel submitted that the judge had charged the jury in a confusing way because he had directed that flight - by which I mean the applicant vacating his home, moving to Lorne, and working there under an assumed name - was "being relied upon not as guilt of murder, but as a factor to rely upon as supporting the inference as to intent and as to not acting in self-defence."

107 I do not accept that the charge was apt to confuse the jury. The Crown argued that some post-offence conduct reflected the applicant's consciousness of guilt that he had murdered Ms Hodge; and that such conduct, and also flight, evidenced the applicant's consciousness that he had killed Ms Hodge with murderous intent,[13] and not in self-defence. The charge reflected the distinction - it is a real distinction; see Ciantar at [81] - though it was subtle in the particular case. As a practical matter, I do not think that the jury could have misunderstood that the Crown was asking it to conclude that the applicant's actions in vacating his house before the lease was up, going to Lorne, and working under a false name[14] - all this happening after he had been interviewed by the police for the first time - were not the actions of a man who had killed without relevant intent, or in self-defence. Certainly, trial counsel does not appear to have thought that there was the potential for confusion. No exception was taken to the charge in the present connection.

108 I should add this for completeness. The learned judge accurately charged the jury, in writing and orally, how the Crown relevantly put its case. Then, in summarizing the prosecutor's argument, he referred to the Crown having relied upon the account of the applicant having moved to Lorne. Theoretically, the jury might have taken what his Honour said to be reference to the applicant's explanation for his flight, given in evidence. But there was no real risk that the jury would have so understood the matter in light of counsel's address and the earlier content of the charge. Even if the jury had done so, however, it was most unlikely to have had any different impact.

Ground 1(f)

109 The learned judge did not direct the jury that, in considering whether the impugned post-offence conduct reflected the applicant's guilt of the offence of murder, it should consider whether such conduct might rather have reflected his consciousness of guilt of manslaughter. It may be that the charge should desirably have contained such a direction.[15] But in this case his Honour directed the jury, again and again, that it could only draw an inference unfavourable to the applicant if satisfied that the impugned conduct showed consciousness of guilt of murder, of one or more of the elements of murder, or else negatived the defence of self-defence. Moreover, in the context of manslaughter his Honour gave a consciousness of guilt direction which must have highlighted to the jury the fact that it could not use the impugned conduct in proof of murder if such conduct did not rise above evidence standing in proof of manslaughter, or of some element of the latter offence.

110 Other than that, the charge dealt expansively with the various reasons why a person might engage in impugned conduct. It did not purport to do so in a way that would exclude the jury's consideration of innocent explanations that were not specifically identified. In my opinion, in the circumstances of this case, no more was required.

Order

111 In my opinion, then, none of the grounds of appeal have been made out. It is therefore unnecessary to consider whether, had there been a deficiency in the charge concerning consciousness of guilt, the same must be necessarily taken to have caused a miscarriage of justice. Neither is it necessary to consider whether, if there had been a miscarriage in those circumstances, the proviso to s 568(1) of the Crimes Act might have been applied notwithstanding that the applicant gave evidence and that his credibility was evidently in issue. The application for leave to appeal against conviction should be dismissed.

The Crown Appeal

112 Counsel for the Crown submitted, by written argument, that the sentence passed was manifestly inadequate. The offence had been marked by circumstances of brutality and cruelty. The applicant's (it is convenient to continue to so describe him) assault upon Ms Hodge had been accompanied by the use of a weapon which had caused unusual injuries to her face; and there were the vaginal injuries, which were not explained by sexual intercourse. The applicant's post-offence conduct had aggravated the seriousness of the offence. One aspect of that conduct, not mentioned by the learned sentencing judge, had been the applicant's attempt to implicate another man in the events of 19 August 2003. Again, the judge had found there to be a degree of remorse. Even if that finding could be justified, it could be of little or no weight in mitigation. Finally, although his Honour had concluded that the applicant had favourable prospects of rehabilitation, that factor had been given disproportionate weight. Deterrence and denunciation had been under-valued.

113 Orally, counsel for the Crown submitted that the sentence was so inconsistent with sentencing standards as to require this Court's intervention.

114 Counsel for the applicant submitted - the sole ground of appeal relied upon in the notice of appeal being that the sentence was manifestly inadequate - that the Crown should not be permitted to raise any allegation of specific error. That was, as I understand it, a reference to the Crown's insinuation - no more - that the finding that the applicant evidenced a degree of remorse was insupportable. Counsel further submitted that the threshold for a finding of manifest inadequacy is very high, and was not satisfied here; but that even if the sentence was manifestly inadequate, no new sentence should be imposed. Counsel submitted also that positive findings made by the learned judge in the applicant's favour had been available, and that his Honour's reference to the applicant's reprehensible post-offence conduct must be taken to include his attempt to implicate the other man in the events of 19 August. Again, counsel relied upon his Honour's finding that the killing had been essentially spontaneous.

115 The offence was surely attended by brutality, and the attack very likely prolonged, albeit spontaneous. There could be no suggestion that killing Ms Hodge was any the less reprehensible because of her occupation or drug-addiction - the former of which, notwithstanding the applicant's denials, seems likely to have brought them together. Severe punishment was required. That is so although the applicant was entitled to have mitigating circumstances weighed in his favour.

116 There were mitigating considerations. In my opinion, the evidence justified each finding which the learned judge made in the applicant's favour - though the evidence of remorse, essentially contained in the applicant's letter to the court after he had been found guilty, was treated by his Honour with understandable scepticism.

117 In the event, having identified and put the pertinent circumstances into the balance, the learned judge did sentence the applicant to a very substantial period of imprisonment.[16] Bearing in mind the fact that this is a Crown appeal, having regard to the well-known considerations which apply in such a case, in that connection noting that the Crown flirted with, but did not embrace, a submission that the sentencing remarks disclosed specific error,[17] I am not persuaded that the appeal should succeed.

Order

118 The Crown appeal against sentence should be dismissed.

119 For the reasons now set out by Ashley JA I agree that the application for leave to appeal against conviction should be dismissed and, further, that the Crown appeal against sentence should be dismissed.

[1] [2006] VSCA 86; (2006) 12 VR 401.

[2] [2006] VSCA 113; (2006) 12 VR 557.

[3] [2006] VSCA 263.

[4] The outline itself, contrast the charge, did not always refer to consciousness of guilt of murder.

[5] See footnote 1.

[6] See footnote 3, at [34]-[36].

[7] At [40]. See also [44]-[45], [52], [54], [65]-[69], [72].

[8] Ciantar at [67].

[9] See, recently, R v Russo [2006] VSCA 297 at [5]-[6].

[10] [1992] EWCA Crim 3; [1993] 4 All ER 877, discussed in Ciantar at [49].

[11] [2003] EWCA Crim 3713 at [46]-[49], discussed in Ciantar at [80].

[12] [2006] VSCA 299 at [52]-[53]

[13] That is, intending to kill her, or to cause really serious injury.

[14] There was also the matter of the passport which was in the course of fabrication.

[15] See Ciantar at [78] and [86].

[16] I note, for sake of completeness, that the Crown did not pursue a complaint that the sentence was manifestly inadequate because the possible period of parole was disproportionate to the head sentence and to the seriousness of the offending.

[17] It would have been untenable had it been unequivocally advanced. See [115].