R v McCullagh [2002] VSCA 163

5. By notice dated 19 December 2000 the applicant has sought leave to appeal against his conviction on a number of grounds which allege errors made by the trial judge in the conduct of the trial and in directions to the jury. By notice of the same date the applicant has sought leave to appeal against the sentence imposed on the grounds that the sentence was manifestly excessive both as to head sentence and minimum term. Before turning to a consideration in detail of the grounds of appeal, it is desirable to say something briefly about the facts which surrounded the death of the deceased and which were established by the evidence at trial.

8. The deceased was a young woman aged 21 years at the time of her death. She lived, at the relevant time, in a caravan at the caravan park in Hastings. For approximately five to six months before her death she had been keeping company with the applicant, who is apparently friendly with a man called Phillip Buttigieg, who lives in Cranbourne. It would seem that from Thursday 9 September 1999 until the time of her death on the afternoon of Saturday 11 September, the deceased, the applicant, Buttigieg and a girl named Melissa Dunkin (a friend of the deceased), were in each other's company for substantial periods of time at various places on the Peninsula and in the City, and were engaged in bouts of drinking, drug ingestion and marijuana smoking at intensities which varied according to the evidence of witnesses. Upon blood analysis following her death, the deceased's blood was found to contain high levels of methyl-amphetamine and ecstasy, although there was no evidence, upon urine testing, of marijuana.

11. The events leading to the death of the deceased appear to have commenced in the evening of Thursday 9 September 1999. The evidence was that, in the early evening, the applicant, together with the deceased and Buttigieg, arrived at Dunkin's house at Tyabb on the Mornington Peninsula. There was a difference of view between Buttigieg and Dunkin as to what thereafter occurred. Buttigieg said that they smoked marijuana for a considerable time before proceeding to drive to Melbourne to visit a nightclub. Dunkin, on the other hand, stated that there were no substances taken at her house before they left later in the evening to travel, via the Somerville Hotel, to the city nightclub at about 1 a.m. During the drive, she ingested some ecstasy. Nevertheless, it appears that they were in the city for some hours before driving back to the Peninsula. According to Buttigieg it was late in the morning of Friday 10 September that the applicant drove him back to his place in Cranbourne. At 4.30 p.m. in the afternoon of that Friday the applicant came back to Buttigieg's place to pick him up before driving to the caravan park at Hastings at approximately 6.30 p.m. There they met the deceased and Dunkin and, according to Buttigieg, they again smoked marijuana. Again, Dunkin gave a different version indicating that no substances were taken at the caravan park. At some stage during the course of the early evening it appeared that Dunkin desired to make a telephone call to a friend. Again there was a difference between the evidence of Buttigieg and Dunkin, the former saying that Dunkin had asked the applicant for the keys to his car so that she could gain access to his mobile telephone. On the other hand, Dunkin said that she had obtained change from the deceased so that she could use the public telephone to make the call. In any event it would seem that shortly after making the telephone call, Dunkin left the caravan park to meet her friend in Frankston. According to Buttigieg, the party continued at the caravan park until the early hours of the morning in the course of which amphetamines were consumed by himself, the applicant and the deceased.

14. At some stage later in the morning of 11 September the applicant went to his car to get his tooth brush but found that a black bag which he kept in the car had disappeared. The evidence was that he became very upset because the bag contained a gold cross of significant sentimental value which had been given to him by his grandmother. It would appear that the applicant thereafter went around the caravans in the park to determine whether anybody had seen his bag, following which he drove Buttigieg back to Cranbourne. At about 4.30 p.m. on the afternoon of Saturday 11 September 1999 they came back to the caravan park to pick up the deceased because the applicant and the deceased were going to an engagement party for the applicant's cousin. As they entered, the applicant exchanged words with the park's proprietor. By that time Dunkin had returned to the caravan park and was in the presence of the deceased. The applicant was still angry and upset and challenged a number of people, including Dunkin, suggesting that his bag and contents had been stolen on the night before. He also said, according to Dunkin, that he would "kill whoever took his bag". The applicant, the deceased and Buttigieg, left in the applicant's car at approximately 5 p.m., dropping Buttigieg off at his home in Cranbourne at 5.30 p.m. The deceased and the applicant, bound for the "engagement party", drove off towards Chelsea where they were expected. They did not arrive at that party because, according to what the applicant thereafter told the police, an argument had developed between them during the journey, in the course of which the applicant stopped the car. A scuffle developed between them, during which it appears that the deceased was struck by the applicant and then strangled to death. Some time later, so Buttigieg said, he was asleep when he was awoken by the applicant who had driven to his premises saying "I think I've hurt Melanie". The applicant took various items, including a sheet, a beach towel and a jacket of one of Buttigieg's sons which had been on a clothes line outside the house.

17. There were various people called to give evidence who had been present at the caravan park at Hastings in the afternoon of 11 September before the applicant left the park with the deceased. The thrust of that evidence was that the applicant was in an angry mood over the loss of his bag and had threatened various people within the caravan park. The husband and wife who operated the park said that at about 4.15 on the afternoon of 11 September they heard loud swearing from outside the gate of the park. It appeared that the applicant, who was a passenger in the car being driven by Buttigieg, wanted the boom gate lifted so that they could gain entry. They were told to park their car outside. The applicant, according to the wife, was "very angry" accusing people in the park of having stolen his bag.

20. Nothing further was known about the fate of the deceased until 15 September when the applicant attended the Homicide Squad's office with a solicitor. He was there interviewed by officers of the Homicide Squad between 5 p.m. and 6.30 p.m. It was upon that record of interview that the applicant partly relied for his defence at trial. He gave no evidence.

23. In the course of the record of interview, the applicant told police that he had been upset on the morning of 11 September when he had found that his "gold cross" had been stolen with the bag that had been in the back of his car. Nevertheless, he said that he was not prepared to make "a big issue" of the matter and he "went about [his] day". Later in the afternoon, he and Buttigieg drove back to the caravan park to collect the deceased so that the applicant could take her to the engagement party. They dropped Buttigieg off at his premises and drove on towards Chelsea. According to the applicant, in the course of the drive the deceased kept on bringing up the matter of the "stolen bag". He said that he did not want to know about it because he wanted to have a good time. Then the deceased had said something that suggested to the applicant that she had taken the bag, which prompted him to say to the deceased "So you took it. You took it with them." The deceased had replied "Oh, fuck you. Fuck you and fuck your grandmother." The applicant said he started to cry, and that the deceased had hit him in the car as he was driving. He had gone to hit her in return and thought that he had "elbowed her" but was not sure. They started to fight and he pulled the car over to the side of the road where, so he said, a "free for all" developed. She was hitting him and he was hitting her "pretty fucking hard". Then, he said:-

"I started choking her. I couldn't - I didn't know - I didn't - It happened so quick. She just stopped breathing. I didn't - I didn't know - I didn't mean to hurt her. I didn't want to fucking hit her and everything. She, just - it was just - I didn't know she had anything to do with thievin me bag. I didn't know any of this stuff. And then - I hadn't been to bed for days with me pain. It's been there since she - I smoked marijuana. I didn `t know what I was doing anyhow. Like, I was - but I knew I had - I didn't intend to fight with her and hurt her. Because it's - felt the same, like, we were fighting and she stopped breathing."

27. The applicant told the police that this "fight" had happened after they had left Buttigieg's place in Cranbourne and were on their way to Chelsea. He said that after he realized the deceased had died he didn't know what to do. He had driven to Buttigieg's place (he refused to name Buttigieg and said he "was not home") where he had obtained rope, a sheet and other items and tied and wrapped the deceased in the sheet. He had then driven past the Lang Lang golf course to a deserted area where he had deposited the body and covered it with tree branches. The applicant told the police that he hadn't been to sleep since the Wednesday preceding the Saturday (11 September), and that he had ingested a "cocktail" of substances including alcohol, "speed", ecstasy, and marijuana. The marijuana, he said, they had smoked "continuously". He said that the drugs ingested had affected him in his decision making power and caused him to become lethargic. But otherwise the cocktail of drugs, he said, had had no effect upon him and that, apart from him being "upset about [the] bag being stolen" he was "fine". Nevertheless, the police kept on returning to the subject of his condition on the Saturday. He said, in response, that "we were taking speed and that all day `cos we hadn't been to bed for days' "; that he was taking "up to 7 grams" of speed in one day; that he had "used a lot over them days" because he "had not been to sleep". After he had described what he had done to the deceased during their fight in the car, and had "asked her to wake up", he said:

"I didn't know what I was doing or anything, `cause we was fucking drug - fucked out of our brains."

Again, when he was asked about the disposal of the body and his clothes, he said:

"Look, I hadn't been to bed for days, and I didn't know what I was doing half the time."

33. In response to further police questioning the applicant said that the deceased was a small woman whom he had been able to overpower; he could give no explanation as to why he did not leave the car whilst she was assaulting him and that he had not sought any medical attention for her because he had "panicked". It was, he said, in that state of panic that he had driven to his friend's place to obtain the sheet and the other equipment for the purposes of concealing and disposing of the body. "I don't know why I even tied her up", he said, "... she was dead. I should have taken her to the police station or hospital, but I didn't know what I was doing, I was so fuckin' afraid."

36. A discussion then ensued as to where he had disposed of the body and he was able to describe, with a degree of accuracy, and with the help of a "Melway's map", where the body was located. Thereafter, the applicant accompanied the police to an area near Scout Road, Nyora where the body was recovered. A "field interview" was conducted in that area at about 11.30 p.m. The body of the deceased was wrapped in a "Sesame Street" bed sheet. There were "bloodstained" grey tracksuit pants around the deceased's head with a rope securing them. Rope was wrapped around the legs and then around the mid-section and around her ankles and neck. There was also a blue jacket wrapped around the neck. A post-mortem conducted on the following day revealed that the deceased's face was swollen with swelling around both eyes. There were petechial haemorrhages in both eyes, a split over the right eyebrow and splits on the skin on the right side of the face under the eyes. Her upper lip was swollen on the left and the lower lip swollen on the inside. There was bruising on one of the arms which was indicative of "defence type injuries" and an internal examination of the neck found bruising under the skin. The bleeding under the neck was accompanied by bruising within the "strap muscles" and a break in the hyoid bone in the larynx. The opinion of the pathologist was that manual strangulation had caused the death and that the force applied was "at the more severe end". The applicant himself was examined by a doctor. There were signs of injury which were described as "trivial".

40. The applicant has applied for leave to appeal against the conviction recorded upon the following grounds:

"2. The learned trial judge erred in law in failing to direct the jury as to the effect of drugs taken by the accused on the question of intent.

3. The learned trial judge erred in law in not adequately directing the jury as to the way in which inferences could be drawn from the circumstances surrounding the killing of the deceased.

4. The ... judge erred in law in directing the jury as to the issue of the absence of motive.

5. The trial miscarried as the consequence of the aggregation of errors referred to in grounds 2, 3 and 4.

Mr. Holdenson, who appeared with Mr. Mahon for the applicant, informed us that ground 6 was, in effect, a repetition of the other grounds.

50. The issues which arose for the consideration of the jury in this trial were narrow; namely whether, on the evidence, the Crown had proved to the required standard that the applicant, at the time when he killed the deceased, had the requisite intent to kill her or cause her really serious injury. In the event that the jury were not satisfied that he had the requisite intent, he conceded that he should be convicted of manslaughter, on the basis of "unlawful and dangerous act". It was conceded on his behalf that his actions which caused the death were conscious, voluntary and deliberate, and that his conduct was not lawfully justified on the grounds of self defence. Although his counsel tentatively put to his Honour that provocation should be left to the jury, his Honour declined to do so; and that decision has not been contested on this appeal.

53. It was, thus, the applicant's defence to the charge of murder that, on the evidence, the jury could not infer that he had formed the requisite intent by reason of a combination of the ingestion of mind-altering drugs and sleep-deprivation. There was, in my view, clearly a basis for this defence to be found in the evidence. It was to be found in the answers which the applicant gave to the police in the record of interview, and to which I have referred in paragraphs [8], [9] and [10]; it was further to be found in the evidence of Buttigieg and, to a lesser extent, in the evidence of Dunkin; and it was also to be found in the evidence of the quantities of amphetamine and ecstasy found, post mortem, in the blood of the deceased. That evidence, and the reliance upon it in support of the applicant's defence, was given meaning by the evidence of Dr. Drummer, the expert toxicologist called by the Crown who deposed, inter alia:

* That the levels of amphetamine found in the blood of the deceased were "on the high end of what we see in people who use these sorts of stimulant drugs ...".

* That " `speed amphetamines' affect perceptions of time".

* That "where fatigue is an over-riding element, [amphetamine] does affect thought processes, cognition; if thought processes are affected then by that very element, judgment will be affected ...; and, may I add the comment, the foreseeability of consequences".

* In response to a query from the judge, Dr. Drummer said that "speed can affect a person in the circumstances that we've just been talking about with respect to the foreseeability of consequences of an action. If the circumstances are that a person's had no sleep in three days, and is using these drugs in anything other than a very trivial sense - and there's evidence that I said that it's not insignificant usage - then it will affect thought processes, and judgment is an element of that, and foreseeable future (sic), I mean that comes back to judgment and one's ability to have a lucid mind, and if that is affected in those circumstances, then ... the answer is `Yes'." The query which was asked by his Honour, which prompted this answer, was directed to the witness's acceptance of the term "Speed corrupts judgment" and whether it meant "that you think you are somewhere else"; and/or that "you don't know what you're doing".

60. Having regard to the nature and content of the evidence before the jury, and its relevance to the only defence made by the applicant to the charge, it was, in my opinion, incumbent upon the judge to carefully instruct the jury, in a manner long recognized by the law, as to how they should use the evidence of drug intoxication and fatigue in resolving the issue of whether the Crown had established the requisite intent necessary to support the charge of murder. Thus, in a case such as this where there was evidence, fit to be considered by the jury, that the applicant was intoxicated as the result of drug ingestion combined with fatigue, it was not sufficient to simply tell the jury that the Crown must prove beyond reasonable doubt that the accused in fact formed the requisite special intent. As Gibbs, J. pointed out in Viro v. R.[1]:

"They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal ... . However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent."

Such a direction is sometimes called, inelegantly, the "negative direction". Rather it is a specific direction designed to ensure that the jury understands the relevance of the evidence of intoxication to the issue of intent and the need for the jury, having regard to that evidence, to be satisfied that the Crown had excluded the possibility that, because of the combination of drug intoxication and sleep-deprivation, the accused had not formed the requisite intent to kill or cause really serious injury. In R. v. Graham John Coleman[2], Hunt, J. described the necessary directions in the following way:

"The trial judge should direct the jury that the Crown must establish that the accused had in fact formed the state of mind which is relevant to the offence charged. In relation to that issue (if intoxication has been sufficiently raised in the evidence), the judge should tell the jury that the onus lies on the Crown to remove any reasonable doubt from their minds which may have been raised by the evidence of the accused's intoxication. To do that the Crown must persuade them beyond reasonable doubt that the accused's state of intoxication was not such as to deny the existence of the relevant state of mind which may otherwise be apparent from all the other evidence in the case."

Hunt, J. went on to point out that, whilst these directions are necessary in cases where intoxication is raised on the issue of the formation of intent, the judge should balance them by telling the jury that intoxication does not amount, in itself, to a defence; and that in many cases it does no more than remove inhibitions or self-restraint and include a sense of self-confidence and, perhaps, aggression.

67. Similar views as those expressed by Hunt, J. in the case of Coleman were expressed by Brooking, J.A. in R. v. Faure[3]. In addition to referring to the remarks of Gibbs, J. in Viro (supra), his Honour referred to the statement of Barwick, C.J. in R. v. O'Connor[4]; and to statements in other cases endorsing the need, in appropriate cases, to give directions along the lines of those expressed by Hunt, J. in Coleman[5].

70. Despite being asked by trial counsel for the applicant to give directions in accordance with the authorities, his Honour did not do so, and gave directions of law which were confined to telling the jury that the Crown must prove to the requisite standard that the applicant had formed the necessary intent to support the charge of murder. Thus his Honour told the jury that:

"... the prosecution must prove beyond reasonable doubt, and this is the dispute in this case, that at the time the accused killed the deceased he intended to kill her or do her really serious injury. I will repeat that. That at the time he killed the deceased, he intended to kill her or do her really serious injury. In this case the prosecution says at the time he choked her to death, he intended to kill her or, at least, do her serious injury. You will note that that third element, which is called the element of intention, and which is the dispute in this case, with that third element, the element of intention, it is sufficient for a conviction of murder if the prosecution either proves at the time, the accused intended to kill her, or at the time he intended to cause her really serious injury. So it is sufficient for a conviction of murder if the prosecution proves that he intended to cause her really serious injury at the time he choked her. When you think about it ... that is not only the law but also common sense. If you intend to cause someone really serious injury, not just injury but really serious injury and they die from it, the law says that is murder. It is also commonsense. ... Either intention is sufficient for murder. Next, it is important to note that at the time that the prosecution has to prove the intention to kill or do really serious injury is at the time he killed her, at the time he had his hand or hands around her throat and he choked her to death. That is the time the prosecution must prove intention to kill. The prosecution does not have to prove premeditation. Premeditation is not an element the prosecution has to prove. Planning is not an element the prosecution has to prove."

His Honour then went on to direct the jury that the element of intent is one which, necessarily, is proved by inference, and reminded them of the instructions which he had earlier given about the drawing of inferences in criminal cases. He told them that the relevant intention in this case could be drawn from facts proved, including what the applicant had done "before, during, and after he killed her".

75. Insofar as instructions to the jury as to the issue of intent, with the weight and authority of the judge's office, were given in this case, what I have set out in the preceding paragraph is as far as they went. Thereafter, at various parts of his charge, the judge reminded the jury of the arguments made by the prosecution and defence, including arguments going to the issue of intent. Thus in relation to whether an inference could or should be drawn as to the existence of murderous intent his Honour reminded the jury, first, of what the prosecutor had said, including the reliance on the "post offence" conduct of "coldly" saying what the applicant had said to Buttigieg and "coldly" getting clothes and rope to dispose of the body. In response to that, the judge continued, the defence "says that the accused was affected by drugs. ... by sleep deprivation, and that a matter you would take into account in not drawing the inference of intention is that whereas you might draw an inference in other circumstances, here - where the accused was drug affected and sleep-deprived - you would not draw the inference that he intended to kill her or do really serious injury ...". His Honour then reminded the jury of select portions of the evidence upon which prosecutor and defence counsel had respectively relied and said:

"So each side argues the question of intention in relation to those areas of evidence. You decide what you accept as evidence. You then decide whether you can be satisfied beyond reasonable doubt of the intention to kill or do really serious injury at the time he killed her based upon the evidence that you find proved."

79. His Honour made further references to the manner in which the prosecutor and defence counsel had put their respective cases when summarizing the evidence and the addresses of counsel. Such remarks were qualified by the customary instruction that the jury were not bound by comments made by counsel or by the judge on questions of fact or inference, which matters were the province of the jury alone. When dealing with the prosecutor's address on the question of intent, his Honour referred (on more than one occasion) to the rhetorical question put by the prosecutor when dealing with the applicant's concession in his record of interview that he had put his hands around the deceased's neck. The prosecutor had said:

"Just think about it for a moment. What other intent did he have than to kill her or do her really serious injury?"

"When one human being puts one or two hands around a person's throat and squeezes until they die, what other intention do they have?"

85. At the conclusion of his Honour's charge, counsel for the applicant took a number of exceptions to it. They included the following:

i. that his Honour had failed to give adequate directions as to the relevance of the evidence of "drug intoxication" to the issue of intent. Counsel referred his Honour to the passage of Barwick, C.J. in R. v. O'Connor[6] and requested his Honour to instruct the jury that the onus was on the Crown to exclude any reasonable doubt which the evidence raised in their minds as to intent.

ii. that the judge should have told the jury that before they could use the "post offence" conduct as evidence of murderous intent, they should exclude any competing inference, such as "panic" beyond reasonable doubt.

iii. that his Honour should direct the jury as to the significance of "absence of motive".

His Honour declined to give to the jury further directions as to the relevance of intoxication to the issue of intent; but gave further directions as to "motive" and "post offence conduct". However, those further directions were confined to the competing arguments of counsel. Again, counsel for the applicant complained that his Honour had not given appropriate instructions about those matters, but had merely repeated counsels' arguments. His Honour declined to give further directions.

92. Against the background of the matters to which I have referred, I agree with Mr. Holdenson's submission, made in support of ground 2, that the judge's directions on the issue of intent, being the only "live issue" in the trial, were inadequate. In this case where, as I have said, the evidence relating to drug intoxication combined with fatigue was capable of raising a doubt in the minds of the jury as to the requisite intent, it was not sufficient for the judge to simply tell them that the Crown bore the onus of proving, to the appropriate standard, that the applicant had, at the relevant time, the requisite intent. He should further have told the jury, in relation to that issue, that the onus lies upon the Crown to remove any reasonable doubt from their minds which may have been raised by the evidence of the accused's drug intoxication and fatigue. He should also have told them, by reference to the evidence, that the Crown must persuade them beyond reasonable doubt that the accused's state of drug intoxication, combined with fatigue, was not such as to deny the relevant state of mind which might otherwise be found from the other evidence in the case. In a case such as this, it is only by giving specific directions of the kind to which I have referred that the judge can comply with the fundamental obligation of assisting the jury to apply the relevant law to the facts and issues raised by the evidence in the case[7].

95. I think that there is also substance in Mr. Holdenson's submission that his Honour's method of directing the jury on the issue of intent by reference to the arguments of counsel was calculated to cause prejudice to the applicant because it appeared to give judicial endorsement to the prosecutor's rhetorical flourish:

"When one human being puts one or two hands around a person's throat and squeezes until they die, what other intention do they have?"

This, as it seems to me, was a tacit invitation to determine the issue of the applicant's intent by resort to the discredited objective maxim that a person is presumed to intend the natural and probable consequences of his or her actions[8]. To that extent, the judge's apparent endorsement of the prosecutor's argument, coming as it did towards the end of his charge, was to risk the inversion of the onus of proof.

100. I did not understand Mr. McArdle, who appeared in this Court on behalf of the respondent, to deny that - in a case where the evidence warranted it - directions of the type to which I have referred in paragraph [21] should be given. His primary submission was that there was no sufficient evidentiary basis in this case to warrant the giving of such directions. It follows from what I have already said that I cannot accept that submission. The evidence was to be found in the applicant's record of interview with the police, in the testimony of Buttigieg and Dunkin, and in the expert evidence of the levels of amphetamine and ecstasy found in the blood of the deceased. The mere fact that there was other evidence in the case upon which arguments could be raised to support the contention that the applicant had formed the requisite intent does not, and cannot, deny the existence of a sufficient evidentiary foundation for the defence, indeed the only defence, being raised by the applicant. The case was conducted on the basis that such an evidentiary foundation did exist. The prosecutor did not suggest otherwise.

103. Nor, in my view, is there any substance in Mr. McArdle's further submission that this is a case where the Court can apply the proviso to s.568(1) of the Crimes Act. The submission was founded upon the proposition that this was a simple "one issue" case (unlike, so it was said, R. v. Faure (supra)) in which the jury would have had no difficulty in understanding the nature of its task in relation to the issue of intent, notwithstanding the deficiency in directions relied upon by the applicant. In support of his submission, Mr. McArdle sought to draw comfort from a passage in the judgment of Brooking, J.A. in Faure's case[9] where his Honour had contemplated that "[p]erhaps one could imagine a case in which ... a charge could be treated as adequate where on a trial for wilful or reckless murder the evidence sufficiently raised an issue as to intoxication, and the judge, in giving the law to the jury and relating it to the facts, failed to explain the significance of intoxication in relation to the mental element of the crime". This, however, is not such a case. I am prepared to accept that it was a strong Crown case, but the fact that the applicant was putting in issue only the element of intent made it imperative that the judge give proper and specific directions which were calculated to ensure that the jury understood that if, because of the evidence as to the effect of the combination of drug intoxication and fatigue, the Crown had not satisfied them that the applicant did in fact have the requisite intent to support the charge of murder, they must acquit him. In the absence of such directions, I am quite unable to conclude that the applicant has not been deprived of a chance of acquittal which was fairly open to him[10].

107. Having regard to the views which I have formed with regard to ground 2, it is unnecessary to consider these grounds. However, because there will have to be a re-trial, it is appropriate to make the following observation which will only be

pertinent if the evidence and the arguments which were made in this trial remain substantially the same at the re-trial : namely that in directing the jury as to the relevance of the applicant's "post-offence conduct" in determining whether the inference of the relevant intent to support a charge of murder can be drawn, the jury should be told that there may be reasons to explain such conduct, other than those supporting an inference of murderous intent; for example panic or recognition that he had, upon any view, unlawfully killed the deceased.

111. For the reasons given, the jury's verdict must be set aside, and a new trial ordered.

116. I agree with the learned President subject to one qualification which does not affect the outcome of the case or the orders to be made. The qualification is that I do not share his Honour's concern about the passages quoted in [19] and [22]. To my mind, the learned judge was only summarizing the prosecutor's address and the prosecutor was doing no more than invite the jury to use ordinary experience to infer actual subjective intent.

121. I have had the advantage of reading in draft form the President's reasons for concluding that the jury's verdict must be set aside and a new trial ordered. I agree in the orders proposed substantially for the reasons he has given.

[1] [1978] HCA 9; (1978) 141 C.L.R. 88 at 112.

[2] (1990) 19 N.S.W.L.R. 467 at 486.

[3] [1999] VSCA 166; [1999] 2 V.R. 537 at 544-5.

[4] [1980] HCA 17; (1980) 146 C.L.R. 64 at 88.

[5] R. v. Stokes & Difford (1990) 51 A.Crim.R. 25; R. v. Rose (1996) 87 A.Crim.R. 109.

[7] Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466.

[8] Cf. R. v. Herbert & Ors. [1982] FCA 147; (1982) 6 A.Crim.R. 1 at 13 per Toohey and Shepherd, JJ.; R. v. Schonewille [1998] 2 V.R. 625 at 632-3.

[10] Cf. Mraz v. R. [1955] HCA 59; (1955) 93 C.L.R. 493 at 514; Wilde v. R. [1988] HCA 6; (1988) 164 C.L.R. 365 at 371-2.