R v McCullagh

2 I am also of the view that, for the reasons given by Vincent, J.A., the appeal against conviction should be allowed. As his Honour explains in his comprehensive reasons, the prosecution was careful in its address to the jury not to suggest that the applicant's post-offence conduct demonstrated implicitly his awareness of his guilt and thus, the presence of the relevant intent. Rather, the Crown case to the jury was that such conduct showed clear thinking on the applicant's part and negated his case that he was incapable of forming the relevant intention because of his preceding substance abuse, including the excessive consumption of alcohol, and lack of sleep. Be that as it may, it is understandable that the learned trial judge sought to warn the jury against engaging in impermissible reasoning in that regard. But when he first dealt with this aspect of the Crown case in his charge, his Honour characterised it as a claim that the applicant's post-offence conduct demonstrated that he was aware that he had committed the crime and that this "evidence" could be taken into account by them on the question whether he intentionally strangled the victim. It is true that, later in his charge, his Honour told the jury that the Crown had not sought to rely on the applicant's post-offence conduct as demonstrating his consciousness of guilt and thus, his relevant intention. But looking at his Honour's charge as a whole, and despite it being otherwise carefully and helpfully formulated, I am not satisfied that these contradictory aspects of the charge did not give rise to the real risk that the jury may have been confused as to how they could properly use the applicant's post-offence conduct to resolve the issue of intention. Thus, they may have concluded that this conduct demonstrated his awareness of his guilt and that it thereby negatived his claimed inability to form the necessary intention to kill the victim. In all the

circumstances, like Vincent, J.A., I cannot conclude that there is no material risk that a substantial miscarriage of justice has not occurred.

3 The applicant was found guilty by a jury, empanelled in the Trial Division of this Court, of the murder, at Skye in Victoria, on Saturday 11 September 1999, of Melanie Ann Harnden.

4 After hearing a plea in mitigation of penalty, the sentencing judge who had, of course, presided at the trial, imposed a sentence of imprisonment of 20 years upon him in respect of which he fixed a non-parole period of 16 years.

5 The applicant now seeks leave to appeal against his conviction.[1]

Grounds of Application for Leave to Appeal against Conviction

"1. The learned trial judge erred in failing to properly direct as to the relevance of intoxication to the issue of intent.

2. The learned trial judge erred in failing to adequately put the defence case to the jury.

3. The learned trial judge erred in his directions on 'post-offence conduct' and in particular he erred:

(a) in failing to give an Edwards[2] or similar direction;

(b) in failing to direct that the jury could not use the applicant's post-offence conduct to support an inference of murderous intent unless they excluded all reasonable hypotheses consistent with innocence that might explain such conduct, such as panic, the recognition that he had unlawfully killed (but not murdered) the deceased, his drug-addled and sleep-deprived state, his fear of facing

the deceased's family, a fear of being wrongly accused of murder.

5. An aggregate of errors caused the trial to miscarry."[3]

The Background

6 The application arises against the following general background.

7 The death of Ms Harnden, who was then aged 21 years, occurred on a roadside near Skye in Victoria on Saturday, 11 September 1999. She had been in a relationship with the applicant for about six months and they were, at the time of the incident which brought her death, in the course of a journey to attend a function with the applicant's family.

8 The applicant subsequently claimed in a police interview that he was attacked by the deceased after an argument had developed between them about her knowledge of a bag containing some of his personal belongings that had apparently been stolen some time earlier. He asserted that he stopped the car in which they were travelling and that an altercation then ensued, in the course of which he grabbed the deceased by the throat, unwittingly causing her death.

9 The prosecution contended that this version of events was untrue and that the applicant had manually strangled the deceased in a fit of pique related to the missing bag and in particular, the loss of a Celtic cross that possessed a deal of sentimental value to him.

The Evidence

10 The relatively brief outline of the evidence adduced in the trial set out in this judgment has been prepared from the summary provided to the Court, concerning the accuracy of which, as I understand the position, there is no controversy.

11 Melissa Dunkin stated that she had known the deceased for some time and that they were very close friends. They were present in the caravan in which the deceased was then living at the Hastings Caravan Park during the afternoon of Thursday, 9 September 1999, when they received a phone call from the applicant. He suggested that they go with him and a friend of his, Phillip Buttigieg, to the city. They agreed and, in due course, the group assembled and later set off. There is no need to set out her description of their movements during the following hours, save to mention that the witness claimed that the applicant gave the deceased and herself each one tablet of the drug known as ecstasy, and that she observed him taking one. Her evidence did not support the version given by the applicant when interviewed by the police or by Buttigieg, to whose evidence I will return, that a substantial amount of drugs was consumed or that any of the members of the party was seriously affected by the consumption of drugs or alcohol.

12 After this outing, they went to the home of the witness at Tyabb, arriving there at about 7 o'clock on Friday morning. Whilst there, she saw the applicant taking clothes from his bag. The applicant and Buttigieg remained at her home during the day and returned to Harnden's caravan at about 9 or 10 p.m. On the following day, Dunkin went to the caravan at about 7 a.m. The applicant was there. He was angry and demanded to know the whereabouts of his bag. However, she said, he appeared to accept her explanation that she had nothing to do with its disappearance and seemed to calm down. The witness left about 15 minutes later.

13 Phillip Buttigieg stated that he was in the company of the deceased, Dunkin and the applicant on the night of Thursday, 9 September 1999. As I have indicated, his description of their activities varied significantly with respect to the amount of alcohol and drugs consumed from that of Dunkin. He said that after the group gathered on the Thursday night they remained at the deceased's caravan for a couple of hours before setting out for the city, and that during that time they smoked marijuana and drank alcohol. On the journey, he saw the applicant take some methylamphetamine, (which he referred to as "speed") by dipping his finger into a bag of white powder and licking it. On arrival in the car park of an establishment known as the Hi Five Club located in Melbourne, the witness took ecstasy tablets and observed his companions also take this drug. They stayed at the club for about three or four hours and drank some Bourbon and Coke.

14 They then returned to Dunkin's house at about 3 or 4 a.m. where they stayed for most of that Friday. Whilst there, all members of the group smoked marijuana, and took ecstasy and methylamphetamine. Buttigieg, according to his own estimate, took five or six ecstasy tablets, a gram of methylamphetamine and smoked about a dozen "bongs" of marijuana. He was unable to indicate precisely the amount of these materials consumed by Harnden, Dunkin and the applicant, but estimated that each had at least as much as he did.

15 Buttigieg and the applicant left Dunkin's residence some time in the evening, eventually travelling to Harnden's caravan. More marijuana was smoked, using a "bong". At some stage, he said, Dunkin wanted to borrow the applicant's mobile phone which was located in a bag in his car. The witness said that he saw Dunkin go to the car and then return to the caravan. She left about half-an-hour later.

16 Following her departure, the witness took another half gram of methylamphetamine and an ecstasy tablet over the next few hours. He also saw the applicant taking drugs during this period.

17 At about 1 or 2 o'clock in the morning, the applicant went to his car and discovered that his bag was missing. He asked Harnden if she knew where it was and she indicated that she had no knowledge of where it might be. He decided to wait until morning before pursuing the matter.

18 When they arose on Saturday, 11 September, the applicant and Buttigieg made enquiries around the caravan park to ascertain whether anyone had seen the bag.

19 Buttigieg said that the applicant was upset and angry about the loss of his possessions. The bag contained a gold chain with a Celtic cross, a video camera, two mobile phones and some clothes.

20 The two men separated for some time during that day, but went together to the deceased's caravan at 3 or 4 p.m. The applicant and the deceased were going to an engagement party and he had requested Buttigieg to assist him further in his search for the bag at the caravan park before they left. The applicant was still angry about his loss at the time they arrived at the park. They remained there for about 15 to 20 minutes during which time the applicant made further unsuccessful enquiries. Buttigieg was dropped off at his home in Cranbourne at about 5.30 to 6.30 p.m. by the applicant and the deceased who, he understood, were on their way to the party.

21 At between 10 o'clock and midnight that night, Buttigieg answered a knock on his door. The applicant was outside. He told Buttigieg that he had "hurt Melanie" and asked for a towel or sheet. Buttigieg gave him a doona cover sheet with Sesame Street characters on it. He identified some rope shown to him as rope located on his front porch at that time, and a towel and jacket as being on a clothesline at the side of his house on that evening.[4] He did not see the applicant again that night.

22 Other witnesses who were present at the caravan park on the occasions that the applicant was present there on the Saturday gave evidence in the trial. Generally, they indicated that the applicant appeared to be agitated concerning the loss of his bag and acted in an aggressive fashion.

23 Sarah McCann is the mother of the applicant. She said that she expected him to attend a family engagement party at the Chelsea Yacht Club on Saturday 11 September, but he did not do so. On the following day she received a telephone call from him and went with her daughter, Joanne Kelly, to meet him at Chelsea Park. She found him seated in the car that he had been driving in the preceding days.[5] He was in an extremely disturbed state, convulsing and she found herself unable to understand what he was saying. He suddenly ran away and the witness then took the car home.

24 Joanne Kelly supported her mother's evidence. She stated that the applicant was convulsing, shaking and jumping around. He had a steak knife in his hand and said that he wanted to kill himself.

25 The body of the deceased was found at the end of a path in a heavily vegetated area off Scout Drive, approximately 2-3 kilometres from the Gippsland Highway at Lang Lang. It was wrapped in the towel, doona cover and a pair of grey tracksuit pants, and was tied by a rope around the ankles, abdomen and neck.

26 A post mortem examination conducted by Dr Matthew Lynch, the head of the Division of Pathology at the Victoria Institute of Forensic Medicine, revealed the presence of eight separate recent injuries acquired before death. They included black eyes on both sides, petechial haemorrhages on the inner surface of both eyes, a laceration over the right eyebrow, six superficial lacerations under the right eye, skin loss over the right cheekbone, a graze on the left cheek and bruising and swelling of the left upper lip. The deceased's face was swollen and there was bruising to the front and left side of her neck. There were scraping type injuries with an appearance typical of that produced by a hand being gripped around the neck. There was bruising to the mid-left upper arm, on the back of the hand and a laceration to the right upper arm. Internal examination disclosed that the hyoid bone was fractured. Dr Lynch expressed the opinion that the death of the deceased had resulted from manual strangulation and that there were at least three areas of blunt trauma to the face.

27 Professor Olaf Drummer, a forensic pharmacologist and toxicologist at the Victoria Institute of Forensic medicine, tested samples of bodily fluids taken from the body of Ms Harnden. The presence of methylamphetamine, known commonly as speed, and ecstasy was detected. Pseudoephedrine, which is found in products such as Sudafed and some cough medicines, was also found in a concentration above that generally required for therapeutic use. There was no cannabis detected. However, Professor Drummer said, this did not exclude its presence at the time of death.

28 Detective Senior Constable David Butler gave evidence of his part in the investigation to which I need not refer and of interviews conducted with the applicant who stated that he wanted to talk to the police as he "just wanted to get this cleared up".

29 In an interview recorded on videotape, the applicant stated that he had been seeing the deceased for six months. The gold Celtic cross was important to him as it was a gift from his grandmother. He was driving to the engagement party with the deceased when she admitted being present when the cross was taken and said "Fuck you and fuck your grandmother". He claimed that she was seated in the front passenger seat and attacked him while he was driving. In response, he struck her face with his elbow and they started fighting. He pulled the car to the side of the road and, in the course of this struggle, grabbed Ms Harnden by the throat. He stated that "It happened so quick. She just stopped breathing", and that he did not mean to hurt her. He said that he did not know what he was doing. He claimed that after her death he was in a state of panic. The applicant admitted going to Buttigieg's house and obtaining ropes and blankets with which he wrapped and tied up the body before disposing of it in a forest area near Nyora. He further said that he had not slept since the Wednesday night before these events and that, during the period in which he was in the company of the deceased and others, they consumed speed, ecstasy and continuously smoked marijuana. He used three grams of speed on the Saturday and described his state at the time of the deceased's death as "drug fucked".

30 The applicant did not give evidence at the trial but adduced evidence from Dr Richard Byron Collins, a forensic pathologist.

31 Dr Collins expressed the opinion that the death of the deceased resulted from manual strangulation, but said that whilst it was difficult to assess the severity of force employed, a moderate degree of pressure applied for 10-15 seconds could have been sufficient. Massive force would be required to cause petechial haemorrhage to the eyes to occur and, in a young person, in order to fracture the hyoid bone, at least moderate force would have to be applied.

Ground 1

32 In support of the contention that the trial judge failed to direct the jury properly as to the relevance of evidence of intoxication when considering whether the prosecution had established the mens rea necessary for the crime of murder, reference was made to a number of passages in his charge to the jury, and to counsel's exceptions to the trial judge's directions. Although counsel in this Court accepted, as indeed had counsel in the Court below, that his Honour correctly stated the burden of proof on a number of occasions, he submitted that the manner in which he addressed this aspect could well have given rise to a measure of confusion and misunderstanding.

33 There was, the argument proceeded, a distinct possibility that the jury may have interpreted some of his Honour's expressions as containing an instruction that the applicant possessed the burden of proof with respect to the effect of alcohol or other drugs upon him, or that it was required that the applicant be incapable of forming the necessary intent before the ingestion of those materials could be taken into account.

34 This case represents a good example of a process with which this Court is regrettably, too familiar. A short passage - sometimes even a single sentence or word - is extracted from a judge's charge and, divorced from the context in which it appears, provides the foundation of an argument that the judge fell into error. To demonstrate this point in the present matter, there is need only to set out the first impugned sentence:

"It is put by the defence that ... at the moment of strangulation, the accused's mind was so affected by lack of sleep, ingestion of hard drugs, smoking of marijuana and the consumption of some alcohol, that he was incapable of forming this necessary intent and that he did not in fact have that intent."

The portion of the charge in which this sentence is contained reads, however:

"I now come to the question of intent. The next element of proof by the Crown is that the accused did the act either with the intention of killing the deceased or with the intention of inflicting really serious physical injury on the deceased. You will note they are alternatives. The Crown doesn't have to prove both, the Crown has to prove one or the other. Hence, you are dealing with the intention with which the act which killed the deceased was performed.

What was an individual's intention may be deduced by you, that is, inferred by you, concluded by you from the facts themselves. You look at all the circumstances. You may deduce from those circumstances, by what the person said, by what he did or omitted to do and that may lead you to the conclusion as to his intention at the time of the performance. His conduct before the act and subsequently to the performance may lead to the conclusion as to the state of mind at the relevant time. However, before you can draw an inference in relation to this matter, that is, the state of mind of the accused at the relevant time, that is, a matter which is adverse to the accused, you must be satisfied beyond reasonable doubt there is no other reasonable inference open on the evidence other than the accused intended to cause the death of the deceased or intended to cause her really serious bodily injury.

As I have said, this element is the real issue in this present proceeding. It is put by the defence that at the relevant time, that is, at the moment of the act of strangulation, the accused's mind was so affected by lack of sleep, ingestion of hard drugs, smoking of marijuana and the consumption of some alcohol, that he was incapable of forming this necessary intent and that he did not in fact have that intent. The Crown must prove at the relevant time that the accused did in fact have the relevant intention, that is, to kill or inflict really serious injury."

35 His Honour made clear to the jury in this passage, as he did on a number of occasions, not only that the onus of proof rested squarely on the prosecution but that the standard to be applied was proof beyond reasonable doubt. His reference to incapacity was made in the context of the presentation of the defence contention as to the impact of the factors mentioned. It clearly did not carry the implication, urged upon this Court, that incapacity to form the necessary intention had to be established before the jury as a reasonable possibility before regard could be had to the consumption of drugs or alcohol.

36 Similarly, I observe that the next passage upon which reliance was placed to support this ground reads:

"Nevertheless, the absence of motive, the absence of any bad relations between the accused and the deceased in this case and, on the contrary, what appears to be a fairly good relationship, is evidence which can be used as tending to negative an intention to kill or cause really serious injury."

This sentence, it was claimed, also suggests that the applicant possessed the burden of proof in the circumstances to negate the presence of an intention to kill or cause really serious bodily injury.

37 It appears in the part of his Honour's charge in which he addresses the relevance of motive in the fact finding process and is also taken out of context. His Honour instructed the jury:

"I now come to the question of motive. It may surprise some of you to be told that the prosecution does not have to prove a motive for the commission of a crime. It is not an element that has to be proved. Often you see in 'whodunit' films and books there is a motive for a killing. Sometimes a killing occurs suddenly, without any real thought, but it is still murder if all the elements are proven. Indeed, in this case the prosecution says that the situation in the car was one of a very angry, aggressive man who took his aggression out on the deceased. The prosecution does not have to prove any motive. Planning is not an essential element, premeditation is not an essential element nor is motive. In other words, crimes can occur without premeditation, planning or motive.

Nevertheless, the absence of a motive, the absence of any bad relations between the accused and the deceased in this case and, on the contrary, what appears to be a fairly good relationship, is evidence which can be used as tending to negative an intention to kill or cause really serious injury. Indeed, in this case the defence does rely on the absence of any motive to show that the prosecution has not proven the intent. You have heard the arguments in relation to that. You weigh them. The Crown says crimes can occur without a motive, on the spur of the moment. The defence says absence of motive and a relationship is some evidence contrary to the proof of intent and you of course will weigh those up."

38 As I have pointed out, and as counsel for the applicant conceded, the trial judge correctly instructed the jury with respect to the onus and standard of proof at a number of different points in his charge. The likelihood that the jury would have understood the impugned remarks as carrying the implication urged before us, that the applicant carried a burden of proof, assumes that they have failed to appreciate the thrust of the directions given to them.

39 There is little point in repeating this exercise in relation to each of the other passages to which the attention of the Court has been drawn in counsel's submissions as none possesses substance and all have to be considered, in any event, against the background of repeated and appropriate instructions concerning the burden and standard of proof in the trial. The possibility that the jury may have misunderstood the situation can, I consider, be discounted.

Ground 2

40 At the conclusion of the judge's charge to the jury, counsel for the applicant complained that insufficient reference was made to what was said by his client when interviewed by the police. He argued, in effect, that salient parts of the record of interview should have been read to the jury. His Honour responded that in the circumstances, and particularly bearing in mind that the record was before the jury as an exhibit in any event, the adoption of this course was not required. I am unpersuaded that he fell into error in so concluding. The arguments that were advanced before the jury by the defence were straightforward and the force attributed to them was dependant upon the view taken by the jury of the inferences and hypothesis that emerged from the evidence which included the applicant's statements to the police. So much can be seen from the matters later discussed in this judgment in relation to ground 3. It is unrealistic to suggest that, in a case in which the only description of what took place in the car at the time that Ms Harnden was killed was that provided by the applicant and contained in a document before the jury, and in which the thrust of the prosecution case was that that version could not be true, the judge needed to read portions of the interview to remind the jury of what had been said and its relationship to the issue that they had to determine.

41 In my view there is no substance to this complaint.

Ground 3

42 This ground raises a more difficult question concerning the proper use to which evidence of post event conduct could be put by the jury. For practical purposes, there was only one live issue before them in this case, namely, had the prosecution established, beyond reasonable doubt, that the applicant possessed the necessary intention at the time that his admitted actions occasioned the death of the deceased.

43 His counsel understandably focussed almost exclusively on this aspect throughout the trial, on more than one occasion, expressly inviting the jury to return a verdict of guilty of manslaughter on the basis that the death of the deceased resulted from the commission by his client of an unlawful and dangerous act.[6]

44 As the summary set out earlier indicates, the applicant had provided a version to the police, which was in large measure supported by Buttigieg at the trial, that he had consumed a considerable quantity of drugs (speed, ecstasy and marijuana) during the period leading up to the incident in his car on the way to the family engagement party. He had be drinking and had had no sleep since the preceding Wednesday night. There must be in that situation, his counsel argued before the jury, at least a reasonable possibility that he did not possess the necessary intention for the crime of murder when he performed the undisputed conscious voluntary act of placing his hands on her throat.

45 The clear thrust of the prosecutor's address was to invite the jury to examine the applicant's conduct at, around, and following that time. She argued that the evidence of the pathologist indicated that a considerable degree of force had been employed by the applicant in what she submitted was a "ferocious attack" by a person in a foul and aggressive mood, and that the inference that he intended to bring about her death or cause serious bodily injury should be drawn. The reasonable possibility for which he contended could, she further submitted, be discounted when regard was had to what he actually did in the period leading up to the incident in the car and his evident ability to engage in reasoned self-protective behaviour immediately afterwards.

46 The matter was put this way:

"The relevant intent is the intention at the material time, that is at the time he strangled her. You will recall at the start of this trial I said that the Crown can't produce a graph of his brain waves at the time or anything that might be similar to that at the time he strangled her. But the Crown says that you should look very closely at the events immediately before, during and after her death to establish his intention at the time he strangled her. That is, that the intention or his intention is an inference that you can draw from all the facts you find proven, including what happened before the accused killed her, what happened when in the car and what he did and said afterwards.

The accused, in his interview, said that he was, and I am quoting his expression here, he was 'drug fucked', and so affected by drugs that he had taken and the lack of sleep he didn't know what he was doing, he said he didn't form the intention to kill or cause really serious injury to Melanie Harnden.

...

The prosecution simply says if you closely analyse his actions, that is the actions of the accused I am talking about, they show a much greater level of clear thinking, aim and purpose than he would want you to believe. What he said in the interview, you will hear, or have heard, is that whilst he was assaulting her he said 'I didn't know what I was doing, I was drug fucked.' After her death, when he is describing what he did, he says: 'I didn't know what I was doing'; 'I may as well have been one of those blow things in the wind, I didn't know where I was'; and 'I didn't know what to do.' However, I ask you to look carefully at his actions and those actions I suggest show clear aim and purpose."

47 She reminded the jury of the evidence of the applicant's activities, commencing with the Saturday morning during which he drove Buttigieg to his home in Cranbourne (a distance of 33 kilometres), washed his clothes and made preparations to go out that night. The evidence disclosed that, on the Saturday afternoon, he returned to Buttigieg's home to collect him and then, with Buttigieg, went to the caravan park at Hastings. The prosecution pointed out that, on his own account, the applicant drove substantial distances, made plans and implemented them over a number of hours. These were not the actions of a person who was so affected by drugs as to be unaware of his surroundings or unreasoning in his conduct, she argued. This theme was pursued, with the prosecutor, analysing the evidence concerning what the applicant did at each relevant stage, and argumentatively relating the evidence to the applicant's description of his state at the time. With regard to the version contained in the applicant's police interview, the prosecutor submitted that it should be rejected as a contrived account given some days later and after the applicant had secured legal advice concerning his situation.

48 The Crown contention was summarized in the passage:

"I suggest if you look at all of that, the activities that started Saturday morning, all of the activities Saturday, what occurred on the way to the Chelsea Yacht Club when they didn't make it but got as far as Taylors Road, what happened in that car and his description of what happened in that car, what he did after he choked or strangled Melanie, all of those things over that extended period of time I suggest show aim, purpose, clear thinking, a concerted effort to hide her body and are not the actions of someone who says he didn't know what he was doing and was affected by drugs and lack of sleep."

"Now, the prosecution submits that his accounts to the police of being drug-fucked and not knowing what he was doing is simply not true and that you should look at all of his actions, in particular the actions at the time he strangled her. They show a clear mind, doing deliberate things, before, during and after the killing of the deceased. And include efforts to dispose of her body which turned out to be 480 metres past the turn-off to the quarry on a narrower part of the road he had ever negotiated. At the time he killed Melanie Harnden, whatever set him off, whatever happened in the car, the clear actions before, during and after put lie to the suggestion he lacked the intention to kill or do really serious injury when he strangled her."

49 It is to be noted that the prosecutor appears to have been at pains to avoid any suggestion that the jury was being invited to reason towards guilt by way of the possession by the applicant of a consciousness of guilt of commission of the crime of murder. However, at minimum, her argument involved the assertion that the applicant possessed at least some appreciation of what had happened in a case in which there was reliance placed in part upon the undisputed evidence that he had engaged in activities designed to conceal not only the body of the deceased but his involvement, wittingly or otherwise, in her death.

50 Counsel for the defence was equally careful to confine his submissions to the issue of the presence of the requisite mens rea for the crime of murder:

"The defence says that what happened in this case wasn't an example of murderous intent or at least you could never be satisfied beyond reasonable doubt.

...

We say there are pretty clear doubts in this case and the accused man is entitled to those doubts exercising your mind in a way that will lead you to say that 'I can't be satisfied of the element of murder, namely that he intended at the time of the killing to cause death or cause serious injury' and therefore - his Honour will tell you - you have no alternative in those circumstances but to acquit. That is not - I emphasise this - I can't emphasise it enough - do not start speculating about penalty and things like that. Let me say this. Manslaughter is a very, very serious crime. It sounds a bit serious, doesn't it? Manslaughter. It is less than murder, agreed, but it is a very serious crime. And this is, you might think, because of his ingestion of drugs, which may well, we say, entitle him to the benefit of doubt so he is not convicted of murder on the question of proof of his state of mind of intent to kill or do serious injury, that very ingestion of drugs coupled with the elements of the offence of manslaughter make this a bad example of manslaughter, but it doesn't make it murder."

51 The jury, by their verdict, can be taken to have rejected the evidence of Buttigieg and the version given by the applicant concerning both the quantity of drugs consumed by the applicant and their effect upon him. When regard is had to the evidence of his activities and decision making capacity in the relevant period, it would have been extraordinary had they not done so. It did not necessarily follow, however, that the applicant may not have been affected, to some extent, by the combined effects of drugs and lack of sleep at the time that he caused the death of the deceased, or that the inference that he possessed the intention to kill or inflict serious bodily injury upon her would necessarily arise. The jury would still have had to determine whether they were satisfied beyond reasonable doubt that the prosecution had established that element.

52 The possibility that the applicant acted as he did following the death of the deceased in the knowledge of and the attempted concealment of his commission of the crime of murder would, I suggest, occur to the minds of most people whether or not any specific suggestion was advanced by either counsel or a trial judge. It is a seemingly small, but extremely dangerous, step from accepting that an individual knew what had happened and took action to conceal his involvement in an event, to drawing the inference that he was aware or conscious of wrongdoing in a relevant sense in relation to that event, and had endeavoured to avoid responsibility and, accordingly, through his words or conduct, by implication admitted his criminality.

53 Whilst, the prosecutor appears to have been very careful to avoid taking that step in her address to the jury, the possibility that the jury may have seen in the applicant's conduct his consciousness of guilt of murder must be accepted as a real one in that situation. It is apparent that the trial judge appreciated that that was the case and that it was necessary to address this issue and to make clear to the jury that in the particular circumstances it would be wrong to reason in that way.

54 Against that background it was unfortunate that his Honour, and almost certainly by inadvertence, attributed to the prosecutor a contention that she had not advanced and instructed the jury that:

"The Crown submits to you that his conduct thereafter is relevant to his state of mind at the time of strangulation. It shows a man who was aware of his wrongdoing and took steps to cover his involvement. It is submitted that his conduct was hardly that of a man who had, in effect, accidentally or by mistake brought about the death or was full of remorse for what he had done. It was submitted that it was the conduct of a man well aware of the terrible crime he had committed and who was taking steps to cover his tracks. It is evidence which bears on the intention at the relevant time and, indeed, it is evidence that can be taken into account to bear on the intention at the relevant time."[7]

55 There can be no doubt from his Honour's later instructions, with respect to conduct that might have been perceived by the jury as evidencing consciousness of guilt, that he had no intention of merging his directions regarding the use of evidence of post-event conduct when addressing the issue of intention and its use as indicating consciousness of guilt, but, it is equally apparent that he did so in this passage.

56 At that stage of his Honour's instructions to the jury, they would almost certainly have understood that they were entitled, if they so found it to be the case, to conclude that, following the death of the deceased, the applicant acted "aware of the terrible crime that he had committed" and "[took] steps to cover his tracks". In a trial in which, as all involved accepted, the only live issue to be determined by the jury was whether the applicant possessed the necessary intention to constitute the crime of murder, the jury were told that the prosecution had submitted that they should reason to the presence of the necessary intention on the basis that the applicant demonstrated awareness of "the terrible crime that he had committed" and took "steps to cover his tracks", in other words, on the foundation of his consciousness of guilt of the crime of murder.

57 What they then made of his Honour's immediately following, and on its face inconsistent, instruction must be a matter of conjecture:

"There is a second way such evidence may be used, but let me say here and now it has not been put this way in this proceeding, but I have got to tell you about it. The second way such evidence may be used is that he took steps to cover his tracks, to avoid the authority, namely the police, and this leads to the conclusion that he was well aware that he had committed a serious offence and was trying to cover up his crime. That is, he had consciousness of wrongdoing and he was behaving like a man who knew he had done wrong. The Crown have not sought to rely upon the evidence in this way and I direct you not to use the evidence in this way." [8]

"There is a natural reaction to saying that a person who has taken steps in those circumstances to apparently cover up his crime therefore must be guilty. It is a natural human reaction, but the law says be very, very careful. If somebody tells a lie, natural reaction: Guilt. Now that is not right either. The only reason I mention this is because the Crown had not sought to say that his conduct shows that he is conscious of a wrongdoing in that he has committed this offence. The Crown relies on this evidence on the question of whether he had the intent at the relevant time so please do not go down that path of saying, 'Oh, he is guilty because he did all this.' That would be quite wrong of you and I direct you that you must not do that. That type of reasoning you must put out of your mind. As I say, the Crown has put forward this evidence as showing that he had the necessary intent at the time and not as some evidence of wrongdoing. As I say, members of the jury, and indeed as Mr Lovitt pointed out in regard to this, that he may have had some consciousness that he had done something wrong because in fact he had killed a person with whom he had a relationship. So as I say, put that all to one side. This evidence is put by the Crown on the basis that it is relevant to the question of intention."

58 The jury was then confronted with an initial statement by the judge that the prosecution has submitted not only that the applicant was aware of "his wrongdoing" but also that he was "well aware" of the commission of "a terrible crime" that had not resulted from some accident or mistake on his part. At least, some of the jury members can be assumed to have interpreted this contention as involving the presence of awareness by the applicant of the intentional strangulation of the deceased.

59 That statement by his Honour was followed by another in which he stated correctly that the Crown had not sought to say that the applicant was "conscious of a wrongdoing in that he committed this offence".

60 He returned to this aspect a little later in the charge; presenting the position in what in the circumstances must be regarded as an equivocal fashion.

"The prosecution says that the accused was in control throughout. But you should accept the evidence that on the Saturday the accused was well aware of what was going on. He last had drugs that morning; that he set out to go to a family function and he was in a foul and aggressive mood because of the theft of his belongings; that he manages to drive considerable distances before the act of strangulation; he admits he had sufficient control of his faculties to consciously, deliberately and voluntarily strike the deceased and strangle her, that these actions were willed by his mind and by grabbing and squeezing the throat of the deceased intended to seriously injure her. The Crown referred to the actions of the accused over the Friday and Saturday with his driving and movements, his behaviour after he caused the death and in particular the tying up of the body, the disposing of the body and the distances travelled to achieve it. It is submitted it showed a thinking man, well aware of what he had done and well appreciative of the consequences of what he had done. It was submitted that his conduct post the act of strangulation showed a man well aware of what had happened. The Crown says the accused's version of the drug taking does not stand up to scrutiny, that is, the truth is that he took his aggression out on this young woman and killed her."

61 As I have indicated, I suspect that, as a general proposition, jurors would look to see whether the statements or actions of an accused after the event were indicative of his recognition of his guilt of the crime involved. When so regarded, the statements or actions constitute implied admissions of responsibility. They bespeak the acknowledgment by the accused of his guilt of the crime charged. However, in a case such as the present one, reasoning of that kind can be both attractive and dangerous as the Court pointed out in Nguyen.[9] An individual, fearful of the consequences, may well engage in exactly the same behaviour whether guilty or innocent. He may be fearful of the consequences that could befall him by reason of "what had happened" as an occurrence or what he "had done" in the sense that he had acted intentionally.

62 Although the concept has, in its practical application, presented great difficulty to trial judges over recent years and has provided a rich vein of appellate decisions, at heart it involves some fairly simple notions. First, it is accepted that an individual through his or her actions after the commission of a crime can sometimes be seen to have impliedly accepted responsibility. It follows that before that conclusion can be reached, the conduct or statements have to be isolated and their significance in the circumstances and, in particular, how it is that they could be viewed as implied admissions, must be identified. Obviously, all other reasonable possibilities consistent with innocence must be excluded beyond reasonable doubt.[10]

63 By reason of the existence of an obvious danger that such statements or conduct may be accorded an unjustified sinister significance by the jury, trial judges are required to identify for the jury the statements or conduct that could be properly regarded as implied admissions, instruct the jury concerning the reasoning by which they may be so perceived and ensure that they are clearly instructed concerning the use to which the statements or conduct could be put. The judge must then make clear to the jury that the statements or conduct can only be used as implied admissions when there is no other reasonable inference open than that they possess that character.

64 In the present case, I do not consider that it is possible to be confident, in spite of the trial judge's otherwise carefully expressed instructions, that the jury may not have become confused as to the proper use to which the evidence of the applicant's conduct following the death of Ms Harnden could be put. As I have said, on their face, the two passages in his Honour's charge set out above are contradictory and the tension between them was never resolved.

65 As a consequence, and acknowledging the force of the arguments advanced on behalf of the Crown before the jury and in this Court, in particular the failure of the very experienced member of counsel who appeared for the applicant at the trial to take any exception on this basis, I find myself unable to conclude that no substantial miscarriage of justice may have occurred.

66 I would therefore allow this application and direct that a re-trial be held.[11]

[1] There is before the Court also an application, by the applicant, for leave to appeal against sentence. By reason of the view that I have taken with respect to the application concerning conviction, this will not be addressed.

[2] Edwards v. R [1993] HCA 63; (1993) 178 C.L.R. 193.

[3] A further ground 4 was not pursued and need not be addressed.

[4] These items were used to bind and wrap the deceased's body.

[5] The vehicle had been rented by the witness and was in the possession of the applicant at all relevant times.

[6] It appears that the applicant's counsel first suggested that this was the proper verdict in his response to the prosecutor's opening.

[7] My emphasis.

[8] My emphasis.

[9] R v Nguyen [2001] VSCA 1; (2001) 118 A.Crim.R. 479.

[10] See Edwards v R (supra)

[11] In these circumstances there is no need to address ground 5.