R v McMahon [2004] VSCA 64

5. The premises at Ripon Street belonged to the Office of Housing and were operated through an agency called Centrecare which provided housing and support services for psychiatrically disturbed people. The deceased was the occupier of Unit 2, and the applicant resided there with him. The deceased was a schizophrenic; the applicant suffers from a psychotic illness which has been diagnosed as a Schizo-affective disorder. It is apparent that their respective disorders were not assisted by the copious quantities of liquor which they were accustomed to drinking up to the time when the deceased met his death. At autopsy, the deceased's blood/alcohol content was in excess of ".3".

8. The precise mental state of the applicant at the time when the deceased met his death on Thursday, 6 April 2000 is unknown. Some days after the death of the deceased, he was admitted to the Grampians Psychiatric Service; and he was later examined by Dr. Lester Walton in October 2000. At that time it appears that his symptoms were in remission; but Dr. Walton noted that he could make no definitive comment about his likely state of mind at the time when the death of the deceased occurred; and - therefore - whether any defence of mental impairment was or was not open. At all times, however, the applicant maintained that he was not implicated in the killing of the deceased who had been brutally beaten and stabbed to death in the unit which was occupied by the two of them. When Dr. Walton next saw the applicant (after his conviction), he was still maintaining his innocence. At that time, the applicant was compliant with his medication but was "relatively insightless" into the nature of his mental illness. During the course of the trial, the judge had voiced his concern about the evidence from a number witnesses who said that, at various times before and after the murder, the applicant was behaving in a manner which indicated that he was not taking his prescribed medication. His Honour "pondered" whether he was required to address "a matter" (i.e. "mental impairment") which the defence had not raised. I think I should note that, in this case, the judge was quite correct in not leaving the issue of "legal insanity" or "mental impairment" to the jury. It has not been suggested, on this application, that the learned judge should have left that issue to the jury. It is the fact, as his Honour said, that experienced trial counsel had, deliberately, not raised the issue of "mental impairment" at the trial. The defence, at trial, was that the applicant was not the person who had murdered the deceased; or - more particularly - that the Crown had failed to prove, to the appropriate standard, that he had. There was no evidence before the court upon which it could have been found that the applicant was either at the time of the killing, or at trial, mentally impaired. Even before the introduction into the law of this State of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the courts were very reluctant to conclude that - in circumstances where the defence had chosen not to raise insanity in accordance with McNaghten's case - the judge was under a duty to leave the issue to the jury where the evidence, upon analysis, might have supported such a finding. It is true that, in R. v. Meddings[1], Sholl, J. took the view that if the evidence at trial "reasonably raises a defence of insanity" it was the trial judge's obligation to submit the issue to the jury even though defence counsel had not advanced the plea. This view was adopted by the Full Court in R. v. Shields[2]. In the same year, in the case of R. v. Jeffrey[3], Barry, J. (with the concurrence of Gillard, J.) said of the statements made by Sholl, J. in Meddings (supra) and R. v. Starecki[4]:

"Those decisions appear to me to go as far as the law permits. The established rule is that it is for the defence, and not the prosecution, to raise insanity as an answer to an indictable offence."

Barry, J. also expressed the view (at p.474) that the evidence which was before the jury in that case did not raise the issue of insanity and that, therefore, no duty in the judge to raise the issue could have arisen. As in that case, so in this case, I am satisfied there was no material which could reasonably have raised a defence of mental impairment. Although this Court retains its power under s.569(4) of the Crimes Act 1958 (Vic.) to quash the sentence and to make a declaration under s.23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act, if it appears to us that the defence of "mental impairment is established in relation to an appellant", that power could not be exercised in this case in the circumstances which I have described where neither at trial nor on appeal, was such a defence or argument mounted; on the contrary, it was disclaimed[5]. Whatever might be thought to be the limits of the Court's power under s.569(4) of the Crimes Act, which I do not decide, it cannot, I think, extend to quashing a verdict where no issue of mental impairment has been raised either on trial or appeal[6]. Nor does it seem to me that the views which I have expressed should be modified as a consequence of the changes in procedure produced by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1967; notwithstanding that the former sections 393 and 420 of the Crimes Act have been repealed. Although the provisions of that Act re-define the former procedures with what is thought to be a "more flexible and humane procedure" for dealing with persons who have committed serious criminal acts whilst under the influence of mental disability[7], they cannot require the Court of Appeal to undertake its own investigations into the mental impairment of an applicant where no such defence has been raised at trial; nor has such an issue been raised on appeal[8].

13. The trial judge did not sentence the applicant until 20 June 2002. On that date he sentenced him to 17 years for the murder, and fixed a minimum term of 14 years for that offence. He sentenced him to three years for the arson and fixed a minimum term of one year for that offence. He ordered the sentences to be served concurrently. It is not entirely clear why his Honour chose to sentence in the form in which he did, but its effect is clear. The total effective sentence was 17 years with a minimum of 14 years. The applicant is currently aged 39 years. In fixing the sentence which he did, the judge moderated it on account of the applicant's psychiatric illness. The significant delay between conviction and sentence was due to the investigations made into the applicant's mental state, which clearly had to play a part in the disposition chosen by the sentencing judge.

16. The applicant initially appealed against both the convictions and the sentences imposed. Before turning to the grounds of those appeals, it is necessary to say something more about the evidence given at trial. The units at Ripon Street, Ballarat, are provided, through the auspices of the Catholic Diocese, to accommodate psychiatrically disturbed citizens. The deceased, as I have said, was a schizophrenic and the lawful occupier of Unit 2. Although the applicant had not been placed in that unit, he had taken up accommodation with the deceased some months before the murder. Although his occupation was unauthorized, it was apparently known to the authorities and tolerated by them. The "next door" unit on the site, No.1, was apparently occupied in similar fashion by two other psychiatrically disturbed persons. At the time of the murder one Daniel Griffin was in occupation of Unit 1. His co-inhabitant, John Hozjan was in "rehabilitation" elsewhere. The evidence suggested that the inmates of Units 1 and 2 were accustomed to consuming large amounts of alcohol, but engaged in little gainful occupation. There was evidence that when the deceased, Griffin and the applicant had been drinking they would become "more aggressive, but not violent". The evidence also suggested that the deceased and the applicant were smokers of marijuana. Griffin said that he and the deceased would become intoxicated about "3 or 4 times per week". He also said that a number of people were accustomed to coming to Unit 2 to "smoke and drink". Hozjan, who was not present at the units on 6 April 2000 when the murder occurred, described the applicant's general behaviour as less irrational than that of the deceased. He said he had seen the deceased smoking marijuana; also the applicant, but less often. He said that, although he had seen the deceased and the applicant squabbling over money for food and rent, there was no violence between them. Each, however, would "put in money" for marijuana. He admitted that he had previously named one McInerney as the supplier of marijuana. McInerney also gave evidence. He agreed that he had known the deceased for some 12 months prior to his death; but denied that he supplied marijuana or that he had seen marijuana smoked at the unit. The only thing that he had supplied, he said, was a "slab of beer" at a time which was no better identified than between "before Christmas 1999" and "3 or 4 weeks" before the murder. When he was at the unit on this occasion, the applicant had shown him a "folding pocket knife" about "8 or 9 inches long" which was "white with a gold or goldie coloured handle". Following this day, so McInerney said, he did not see the applicant again. His evidence, for reasons not clearly apparent, had been "tailored"; but the "tailoring" appeared to have deprived it of much of its meaning and significance. Nevertheless, as will become apparent, it developed a "life of its own".

19. The evidential narrative of events, leading up to the murder on Thursday, 6 April 2000, commenced in the evening of Wednesday, 5 April. At about 5.50 p.m. on that evening, the deceased, Griffin and the applicant were seen entering the "bottle shop" of the Bunch of Grapes hotel. They purchased a "slab" of beer and some cigarettes. The applicant attempted to buy a bottle of Southern Comfort, but had insufficient funds. On the following day, 6 April 2000, the deceased had received money into his account. He, the applicant and Griffin decided they would go into Ballarat to purchase alcohol and food. Griffin, who had been drinking heavily for days, and was "on tranquillizers", was feeling "weak". They were seen at a telephone booth ringing for a taxi; with Griffin lying on the ground next to the booth. They were collected by a taxi at about 9.30 a.m. The taxi driver recalls that all of them were "staggering" as if they had had a "heavy night". He took them to Coles where they bought a "slab" of beer and some food. The taxi driver recalled the applicant was sitting in the front passenger seat. He described him as "of slim build" and "short cropped hair". The group arrived back at Ripon Street at a time between 10 a.m. and 11 a.m. The publican at the Bunch of Grapes Hotel said that, at a later time between 11.30 a.m. and noon, he saw the deceased in the bottle shop at the hotel. He was alone.

22. When the group arrived back at Ripon Street, Griffin said that he was invited into Unit 2 to share the alcohol. He said he declined because he was feeling unwell. He returned to his own unit, that is Unit 1. This, he thought, would have been between 10 and 11 a.m. He said that he went to sleep and had woken up "roughly about 7 to 8 p.m.". He was hungry and, because he had no food, he went to Unit 2 where he spoke to the deceased and the applicant. The latter made him "2 sandwiches" in the kitchen. The deceased was in the lounge room on the couch and was, according to Griffin, quite intoxicated. Griffin said that he remained in Unit 2 for "about 5 minutes", after which he returned to Unit 1 and went to sleep. The next thing that he recalled was being woken by the sound of fire sirens which, having regard to the evidence of fire officers, must have been at about 7.45 p.m. He got up and looked out the rear door of Unit 1. He said that he believed that the "dumpmaster bin" at the back of the units was "on fire". He then went back to sleep.

25. At 1.40 p.m. on 6 April 2000, the witness Leonie Counsel, an ambulance "call taker" in Ballarat had taken a telephone call from the applicant who was making the call from the kitchen of Unit 2. In that call, he expressed concern to Counsel that his flat-mate (the deceased) was in dire straits and was about to "pass away". The text of the call was reduced to tape and a transcript of it was made and exhibited at trial (Exhibit "H"). It appeared, both from the text of the call and the applicant's evidence at trial, that the applicant was concerned for the deceased's welfare because he had apparently lapsed into a state of unconsciousness due to the copious quantity of liquor which he had consumed.

28. The next event which was known to have occurred at the units, and which was the subject of independent evidence, happened at approximately 7.25 p.m. A loud "bang was heard by a neighbour, Robert Suter, which appeared to come from behind his garage. He looked down the side of his fence line towards the units and saw smoke seemingly coming from the vicinity of the dumpmaster in the laneway at the rear of the units. He walked around the rear of his premises to the laneway at the rear of the units in Ripon Street. Unit 1 appeared to be in darkness but Unit 2 appeared to be fully lit. He noticed that there was a fire in the garage to Unit 2 and the "roller door" at the front of the garage was buckled outwards. He went to the front of Unit 2 and could see that the security wire door to the unit was closed and locked, but that the front door to the unit was open. As he was looking at the door, it slammed shut. Then the lights in the unit were switched off so that the unit was plunged into darkness. He thought he could hear sounds like footsteps coming from inside the unit. He ultimately rang the Fire Brigade. He estimated that a period of 8 to 10 minutes had elapsed between hearing the explosion and ringing the Brigade. The fire trucks arrived at about 7.45 p.m. Suter met them in the laneway. The fire fighters took steps to put out the fire in the garage. When they were able to enter the garage they found the burned body of the deceased sandwiched between a bed base and a mattress. Later investigations revealed that the deceased had been brutally bashed and stabbed in the unit, and his body dragged from the main bedroom down the passageway to the back door; then down the steps at the back door along an alley way at the back of the unit to the garage where the body had been dumped on the bed base and covered with the mattress, which had then been set on fire. The cause of the explosion, which had buckled the roller door, was thought to have been due to the ignition of petrol in a motor mower which was a short distance from the seat of the fire. The fire fighters contacted the police who arrived shortly after and secured the area.

31. Subsequent investigations by the police revealed that the deceased had died as a consequence of trauma to the head consistent with a blunt instrument and incisions in the neck, chest and back which, according to the pathologist, were consistent with "stab-type" wounds with a sharp instrument. No murder weapon or weapons were identified. It was obvious that the deceased had been killed inside the unit and "blood trails" indicated, as I have said, that the body had been dragged out of the unit into the garage. A large amount of blood in the main bedroom (that occupied by the deceased) suggested that the brunt of the assault on him occurred in that bedroom, probably whilst he was lying down. There was blood also found in the lounge room and in the bathroom. The distribution of blood in the bathroom suggested that the killer had washed himself in there after the killing. Although the police quickly became aware that the occupiers of the flat were the applicant and the deceased, they were not able to establish the identity of the deceased for some time. Only then did they realize that it was the applicant who had disappeared. It was not until Monday, 10 April 2000, that he was located by the police. On that day he was driven by his brother from Ballarat to the Homicide Squad office in Melbourne. They were accompanied by a friend, Lee Wade, and a lawyer whom the brother had rung during the week-end. It appears that Wade had found the applicant on Saturday, 8 April, in a service station close to Wade's house. Wade, who was aware from reports in the local newspaper that there had been a killing, and a fire, in the Ripon Street unit where the applicant lived, had asked the applicant whether he knew "what was going on". The applicant had replied: "No, why?" The applicant told Wade that he had been sleeping near the railway line. It appeared to Wade that he was not "registering". Wade took the applicant home with him, and rang his brother, Askin McMahon. The brother then went to Wade's house and found the applicant who was "staring and mumbling". It appears that the applicant stayed at the Wade's house during the week-end. By the time he was taken to the police on Monday, he had had a shower, and a change of clothes. A black "T-shirt" and some blue track-suit pants were later given to the police. If the taxi driver's description of the applicant, as at 6 April 2000, is correct, the clothes given to police could not have been the clothes worn by the applicant on that day. Although the police attempted to interview the applicant on 10 April 2000, the applicant's condition did not enable it to be completed. However, the police took from him the shoes which he was wearing. He returned to Ballarat for the night; but came back to Melbourne on the following morning to the Magistrates' Court where an order for the taking of a blood sample was made. Thereafter, he apparently returned to Ballarat where he received treatment from the Grampians Psychiatric Services. He was not formally interviewed by the police until June 2000. However, before he returned to Ballarat on 11 April, he had been examined by Dr. Hood of the Institute of Forensic Medicine. His hands revealed scratches on the back of them, and a series of "scabs". There was a large bruise on one thigh.

34. In the meantime, police had carried out scientific investigations at the Unit where the crime was committed. Those investigations were roundly criticized by defence counsel at the time as "disorganized and rudderless". Evidence was given by members of the "crime scene unit" that there were blood stains of a "minor nature" on one of many knives in the kitchen. There were also bottles which were taken for fingerprinting. None was conclusive. The head of the unit, Sgt Evans, said that there was much blood in the bed-room. The "spatter" was found at a "low level" on the walls indicating that it had emanated from a "low source". He identified a "foot-print" in the blood on the back door-step which matched the "Oliver" shoe which the police ultimately took from the applicant. Under the upper flap of that shoe, police found blood which matched the DNA of the deceased. The trail of blood drops and stains, which indicated that the body had been dragged to the garage, commenced in the deceased's bed-room and went up the hallway into the front hallway area, around the corner into the dining part of the kitchen and, then, over the threshold to the back door; then through that door down the steps and around to the right and along a concrete path to the garage door.

37. It was not until 6 June 2000 that the applicant was formally interviewed by the police in the presence of an independent third person. He denied that he had killed the deceased and expressed concern that he "would be framed for something he had not done". He said that he could remember "bugger all" about the events of the day when the deceased was killed, and he was not even sure that the deceased was with him in the Unit that day. In the course of the interview, he said:

"What I can tell you is that I heard a bang, I got out of my bed and then, from what I can remember is I jumped the fence and, as I was jumpin' the fence, there was a fire brigade man there, so, I jumped the fence and kept walking past. That's all I can recall."

He also said that the "bang" which he heard was "loud, like a gun"; and that he:

"took off - I took off, I shit myself. I took off and went over the fence. That's what I did."

"to get out of there in case someone was gonna shoot me. Bugger that."

He thought that "the bang" went off just before darkness, "probably about 5.30-6 o'clock". He did not stay to look for the deceased on the way out. When asked whether he did anything between the blast and seeing the fireman he said:

He told the police that he had gone to a house in Carpenter Street, Wendouree and smashed a window to get in. He slept there, on the floor. He said he was wearing the "Oliver" shoes; and had fled the scene because he did not want to get the deceased into trouble for "looking after" him. He said he had made the telephone call during the day to the ambulance call service because the deceased was drinking and "looked like he was just dyin' ". He said he went to bed shortly after and that that was the last time he had seen the deceased. When asked:

When asked if there were any other visitors that night, he said: "No". He was reluctant to answer questions put to him about Griffin for fear that he might get him into trouble for staying with Hozjan in Unit 1. He said that he could not remember having any arguments with the deceased on 6 April 2000, denied being violent when he was feeling ill, and volunteered that he did not know why the police were "asking all these questions", saying that they "should go out and get the bloke who did it".

52. It was conceded by the informant, Sgt. Illingworth, that the police had made a search of the house in Carpenter Street, into which the applicant had broken on the night of 6 April, and that no blood stains had been found. He also said that Unit 1 had been searched and tested for blood stains, and that there were none. He further conceded that no motive for the killing of the deceased was known.

55. The applicant gave evidence in his own defence. He maintained his denial that he had killed the deceased. Inter alia, he made the following points:

* That, when they returned to the units on the morning of 6 April, he and the deceased and Griffin had sat at the table and, between them, drank the "24 or 30 stubbies" from the "fridge".

* That at about 1.30 p.m. he had called the ambulance service because the deceased was slumped with his head on the table and it "brought back memories of the way my mother had passed away". He had tried to "rouse" him while he was talking to the operator. When the call had been terminated, he waited around to see if he was alright. He then went to his bedroom, lay down for a while; then got up and went for a walk. He came back, saw that the deceased had "come to" and was in the lounge room.

* That he had taken off his shoes in the lounge room and placed them "right there near the pushbike on the wall". He said that he usually left his shoes in the lounge room.

* That 10-15 minutes after he had sat down with the deceased in the lounge, he went to bed and went to sleep.

* That he had, some time later, woken and "went out into the lounge room". There he saw the deceased sitting in the lounge room with "two men" whom he did not know. When asked to describe them he said:

"Yes, dark - dark hair, olive skin and one had a moustache and was pretty big. And there was another on that as skinny with long blond hair, curly and unshaven."

He said that he was not introduced. He further said:

He saw a "bong" that belonged to the deceased. He said:

"I had the pipe and it would have been about 20 - 20 seconds to a minute when I smoked it and got all the smoke into my lungs."

* That he then went back to bed and went to sleep. Then "I remember hearing a bang. I would've been half asleep. It sound boom, like that."

* That it was light when the two men were there and there were no internal lights on in the unit.

* That after he had heard the bang, he "did not take much notice of it and I fell back to sleep, and then later on I heard sirens so I got up." He affirmed that he "got up when I heard the sirens". He got up and got dressed and then "I went out into the lounge room ... put my shoes on, heard flashing lights, thought there was a fire, so I went out the back door, saw a fire truck and then I decided to jump the fence, because I did not want [the deceased] to get into trouble because of me staying there, I wasn't allowed to stay there". He agreed that he had gone out the back door, but made no observations of anything in or about the house.

* That, when he left the house, it was "just getting on dark"; that he saw a fire truck and a fireman. He then walked to Carpenter Street, broke into the house, and tried to get some sleep. He stayed there until about lunch-time on the next day. He did not know what clothes he was wearing. He went around looking for work. That night he had slept near the railway line. On the Saturday morning, he went to the BP service station where he had asked the attendant for a job. That is where he was found by Wade.

* That he had had a shower at Wade's place but that he "thought" that he had put the clothes which he had been wearing back on. These were the clothes that he had been wearing for the "last 3 days". His brother had given him clean clothes on the Monday. He had heard that his brother had given the clothes he had been wearing to the police. Sgt. Illingworth had taken his shoes.

* That he thought that the cuts on the back of his hand might have occurred when he smashed the window breaking into the house in Carpenter Street.

74. When cross-examined, he agreed that he had endeavoured to tell the police everything that he knew when interviewed on 6 June 2000. He was challenged about inconsistencies between his evidence and what he had told the police:

* He agreed that he had not told the police about seeing the two strange men in the flat. "My mind was jumbled at the time. Oh, I'd been smoking; smoking affects me in a way that my thoughts don't seem to come straight out." It just never came to his mind to tell the police about the two strange men, even though he was aware that the police suspected him.

* He was challenged about the fact that in his interview on 6 June, he had told police that it was the loud "bang" which had caused him to run out of the unit. He said "not exactly after the bang. I went to sleep, and then I took off once I heard the sirens."

* He said that he had not heard any "argument or fight" because he was "out to it".

* When it was put to him that he had shown a "pocket knife" to McInerney, he denied that he had one. He said that McInerney was "probably trying to get him into trouble". When the prosecutor put to him that he had had such a knife and had "got rid of it" he denied it.

* He said that there were no lights on in the unit when he left it. He said that he did not go into the deceased's room, because he thought the "bang" was a gunshot. He said:

"Yeah, I was just scared. I just took off, got out of there."

* He did not hear Suter at the front door; he said he did not know if the front door was open or not; and that the lights were not on, and no one was in the house when he got up.

* He said that Griffin had not come over "near night-time". Griffin had been in the unit near lunch-time, and did not return.

* He denied that his evidence that he had left his shoes in the lounge room where the police had found "blood spatters" was a recent invention to answer the evidence that the deceased's DNA had been found on the top of those shoes.

91. It has been necessary to refer to the evidence in some detail to understand the matters raised in this application. In his initial application for leave to appeal against conviction, the applicant raised nine grounds, only two of which (grounds 6 and 7) were argued before us. Leave was given shortly before the hearing to add two further grounds (11 and 12). Furthermore, at the outset of the hearing the applicant, through Mr. Holdenson, applied for leave to abandon his application for leave to appeal against sentence. That application was granted. In summary form the grounds of the conviction application were as follows:

6 and 7: That the judge had misdirected the jury by telling them that they could use, as a "lie evidencing consciousness of guilt", the applicant's denial that he had possessed the knife which the witness McInerney had said that the applicant had shown him on an earlier occasion at the unit.

11: That the judge erred, when directing the jury that they had to exclude the applicant's explanations beyond reasonable doubt, by telling them that such explanations had to be reasonable; or that they had to satisfy a test of reasonableness.

12: That the judge erred in his directions to the jury concerning their assessment of the applicant's evidence, by directing them that they had to "consider [the] motive [of the applicant] to tell untruths".

98. The case against the applicant was largely circumstantial. There was, of course, the evidence that the blood of the deceased was found on the flap of the applicant's shoe which had survived apparent wiping of the shoe. There was also the uncontested fact that the applicant was in the unit at the time when the deceased was killed. In those circumstances, it was inevitable that the prosecutor was going to invite the jury to thoroughly scrutinize the evidence of the applicant and to strongly comment upon the discrepancies between that evidence and the statements made in the lengthy record of interview of June 2000. In particular, there were four matters upon which strong comment was made:

(a) his evidence that there were two strange men in the unit shortly before the deceased met his death; a piece of evidence described by the prosecutor as "an out and out lie" designed to "avoid guilt".

(b) his evidence that he had taken off his shoes before going to bed; and placed them next to the wall where the push-bike was, and where blood spatters were found on the wall. This was contrary to what had been said in the record of interview; and was - so the prosecutor asserted - a lie told to explain how the deceased's blood came to be found on the flap of the shoe.

(c) his evidence that Griffin, contrary to what that witness had said, did not come to the unit at or about dusk on 6 April 2000 looking for something to eat. Griffin's evidence was that, when he came, only the deceased and the applicant were there. It was put by the prosecutor that, when Griffin gave that evidence, it was not challenged. It was only when the applicant gave evidence that he placed Griffin's arrival at the unit much earlier - "At about lunch-time".

(d) likewise, the prosecutor attacked what he described as a lie - namely the denial by the applicant that he had produced to the witness McInerney a "pocket knife, 8-9 inches long with a gold or goldie coloured handle" some weeks before the murder. The prosecutor put it that the denial was "significant" because the police "can find no weapon that they can associate or connect to the crime".

104. These were, of course, not the only matters upon which the prosecutor made strong comment about the applicant's evidence. But they were the matters which, in discussion with the judge, the prosecutor submitted should be left to the jury as "consciousness of guilt lies". Following that discussion, his Honour said that he would not be prepared to leave as such "lies" the applicant's "claim to have left his shoes near the bike"; nor his evidence that at a time late in the afternoon he had seen two men, whom he did not know, sitting in the lounge room with the deceased. His Honour said that he could not leave those matters as lies evidencing "consciousness of guilt" because there was no evidence, independent of the accused, to substantiate them. His Honour appeared to take the view that the decision of the High Court in Edwards v. R.[9], established that principle. It should be recalled that Edwards was a case where the evidence of the "lie" was to be used to corroborate the evidence of the complainant and depended for its proof upon acceptance of the evidence which was required to be corroborated. Generally speaking, there is no reason why a lie which the jury accept has been told by an accused person in or out of court in respect of a material matter (in the sense that it is concerned with a circumstance or event connected with the offence) cannot constitute an admission against interest provided that the jury, properly instructed, determine that it has been told from a consciousness of guilt. If it were otherwise, it would mean that a jury which rejected, as a fabrication, an elaborate alibi mounted by the accused on his trial would not be entitled to use its finding as some evidence probative of the guilt of the accused[10]. Speaking for myself, I would have thought that the evidence of the applicant that he had seen two strangers in the unit in the company of the deceased shortly before his death, if rejected by the jury as a deliberate lie, was the very sort of lie which a jury, properly instructed, could have used as demonstrating a consciousness of guilt. It goes without saying that each case must depend upon its own circumstances, including the nature and materiality of the statement which is rejected by the jury as untrue.

107. Mr. Holdenson submitted, however, that the judge was wrong in directing the jury that, if they regarded as a lie the evidence of the applicant denying that he had produced to the witness McInerney, some weeks before the deceased's death, a pocket-knife, they could use that false denial as evidence probative of guilt. Such a lie, he submitted, could not demonstrate a consciousness of guilt because it could not be shown to be a "material" lie in the sense which I have described. He pointed to the fact that no one had suggested that this was the knife which had been used in the killing; that it was never made clear when the applicant had produced this knife to McInerney; that the pathologist was unable to say what type of instrument had caused the "stab-like" wounds suffered by the deceased; and that the prosecutor had not suggested, either in opening or in his final address, that this was the knife which had been used; all he had said was that this knife "may well have been the murder weapon". Thus, Mr. Holdenson contended, even if the jury were of the view that the applicant was deliberately lying about the production of the knife to McInerney, the telling of that lie was not "material" in the sense that it was "explicable only on the basis that the truth would implicate the applicant in the offence with which he was charged"[11]. It was not submitted by Mr. Holdenson that, if it was open to leave this so-called "lie" to the jury as evidence probative of guilt, his Honour's directions were defective. Rather the submission was that a miscarriage had occurred because the judge had invited the jury to use a piece of evidence as supporting the Crown case in circumstances where it was not capable of being used as probative of guilt.

110. In support of these submissions which, if I might say so, were cast in imperative terms of a type which can render them no more persuasive, Mr. Holdenson referred us to the case of R. v. Sutton[12], which was a case where the court had set aside a murder conviction because the judge had left to the jury, as lies capable of being used as probative of guilt, certain evidence which, on the court's analysis, did not amount to "material" lies. The facts in Sutton's case were very different from this case. In that case, the body of the deceased (with the throat cut) had been found next to a swimming pool in Forbes (NSW) at about 6.45 a.m. on 22 March 1984. The accused was the last man seen in the company of the deceased at an hotel at about 11.30 to 12 midnight on 21 March. They had gone to the park, where the deceased's body was found near the pool, to resume drinking. The Crown called evidence from a friend of the accused (Ms. Carter) that, at about 12.30 a.m. on 22 March, the accused had come to her house. He was covered in blood - on hands, clothing and face. He asked to be driven to his brother's house, a request with which Ms. Carter complied. In his record of interview with the police, and his unsworn evidence at trial, the accused categorically denied the evidence of Ms. Carter and told the police that, after he had left the deceased, he had "hitched" a lift to a town called Ardlethan some 200 kilometres from Forbes; had seen his girl-friend, and "hitched" back to Forbes at about 8.30 p.m. on 22 March. In order to rebut this story the Crown led a body of evidence, which included five witnesses together with a number of plans. The Crown's aim was apparently to destroy the worth of the accused's story and, thereby, to enhance the reliability of Carter's evidence. Not surprisingly, the Court of Appeal (NSW) found that this body of evidence, even if found to be untruthful, could not be material to the killing of the deceased. It did not amount to an alibi for the accused's whereabouts at the time when the deceased was killed in the early hours of 22 March; and it could stand quite consistently with Ms Carter's evidence. It, thus, created a "false issue in the case" going to collateral questions of credit. As Street, C.J. (with whom the other members of the Court agreed) said[13]:

"In the present case, the so-called lie does not relate to a material issue and hence the link between the respondent's (sic) assertion that he had gone to Ardlethan and his guilt of the crime was not demonstrable. The evidence regarding the Ardlethan journey was not inconsistent with Ms. Carter's evidence ... Assuming that the Ardlethan account advanced by the appellant was shown by the five witnesses and the documents tendered by the Crown to be a lie, I have great difficulty in identifying that lie with an issue which was material in the trial."

114. I must say that Sutton's case was far removed from the facts of this case. Not only was the body of evidence led in an effort to "prove the lie", it was evidence calculated to prove an issue which was wholly immaterial to the crime. Indeed, it was evidence of such a nature to lead the court to describe it in the following terms:

"... this not unimpressive volume of evidence from persons at Ardlethan who said they had not seen the appellant in Ardlethan ... It fell far short of being convincing positive evidence that [the appellant's] account was false. Nevertheless, it was evidence which could well have coloured the jury's approach to the appellant's guilt or otherwise ..."[14]

118. The impugned "lie" in this case was asserted by the Crown to stem from the applicant's denial that he had been in possession of the knife which McInerney asserted had been produced by the applicant at some unspecified time before the murder. Whilst I have some sympathy for the submission by Mr. Holdenson that a false denial by the applicant that he possessed such a knife weeks before the murder, was a matter of marginal materiality to the issues in the trial, it was nevertheless the fact that the investigations were not able to identify a murder weapon, particularly one which was or had been in the possession of the applicant. In this sense, the alleged lie - if so found - had a materiality which the body of evidence which had been led by the Crown in Sutton's case did not have.

121. However, as I have pointed out, the question whether a lie is capable of being material to the ultimate issues in any case will depend on nature of the evidence which is given in that case and, in certain circumstances, the manner in which the evidence is given. Materiality, in that sense, is very much wedded to the atmosphere of the trial. In this case the judge had, sensibly, discussed the issue of alleged "lies" with the prosecutor and defence counsel (each experienced practitioners in criminal law) before giving any directions, The four "lies" asserted by the prosecutor to be those emanating from a consciousness of guilt (to which I have earlier referred in paragraph [18]) were each canvassed; and defence counsel had initially submitted (at Tx.758) that "each of them goes to credit". However, it was not argued by defence counsel that the lie was not "material". The judge considered the matter overnight and, on the following morning, said that he had formed a preliminary view that two of the asserted "lies" (namely the denial by the applicant that he had possessed the knife; and his denial that Griffin had come to the unit at "dusk") could be left to the jury as probative of guilt; but that the other two (namely, "the presence of the two strangers in the unit" and the "depositing of the shoes next to the bike in the lounge") could not. Further debate then ensued between the judge and counsel; following which applicant's counsel said that he "adopted" the views of his Honour. His Honour then asked applicant's counsel whether he wished to say anything about his [that is the judge's] view about the third and fourth [lies] - namely the denial of the knife and the denial of Griffin's attendance at "dusk" - to which counsel responded:

"No, your Honour, provided that the various criteria and explanations and safeguards ..."

to which the judge responded that he hoped he would give appropriate directions and hear counsel later as to whether he had; to which counsel responded:

"No, there's nothing further I'd say in relation to that."

His Honour then gave a ruling in accordance with his preliminary view; and subsequently directed the jury accordingly. No exception was taken to those directions.

128. In the circumstances which I have described, I am satisfied that it is not now open to the applicant to contend that the applicant's denial of the possession of the knife - if found to be false - was not a "material lie"; nor in my view is it open to be contended, in the face of unimpeachable directions, that the leaving of the matter to the jury produced any miscarriage in the trial. Furthermore, even if I am wrong in my conclusion that the applicant's denial of possession of the knife was capable of amounting to a "material lie", the leaving of the issue to the jury has not, in my opinion, produced any substantial miscarriage of justice in the trial within the meaning of the proviso to s.568(1) of the Crimes Act. I would, accordingly, reject these grounds.

Ground 12 - Misdirection as to matters bearing upon jury's approach to evidence of the applicant.

132. This ground was argued in advance of ground 11. Mr. Holdenson contended that the judge had drawn a distinction between the way in which the jury should assess the evidence of witnesses for the Crown and the manner in which they should assess the sworn evidence of the applicant. Early in his directions to the jury, the trial judge had canvassed with them the manner in which they should assess the witnesses called by the Crown. He told them that they had to assess the reliability of the evidence and that "some people are very honest, but very unreliable"; and that the jury needed to determine whether the witnesses who had given evidence had "a capacity to recount things accurately". Various matters which they should take into account, his Honour told them, included the witness's demeanour, the consistency of the evidence with other evidence in the case; whether there was independent support for their evidence; whether the jury regarded it as honest and reliable evidence; that it was open to accept part of a witness's evidence, but not other parts. His Honour then turned to directions about inferences. These directions, as it seems to me, were all appropriate and in common form. However, it is said that they formed a basis for inviting the jury to draw a distinction between the manner in which they were to assess the prosecution witnesses and the manner in which they were to assess the evidence of the applicant, in respect of whose evidence his Honour gave the following directions, again early in this charge:

"You will recall that the accused gave evidence and when you are assessing his evidence, you apply exactly the same assessing techniques to that evidence as you do to all the other evidence in the case. Is it honest, is it reliable, is it accurate? Is there a motive to tell untruths? The same sorts of application that I have already indicated to you."

His Honour then turned to the use which the jury could, and could not, make of the answers given by the accused in his record of interview, the substance of which has not been challenged.

137. Mr. Holdenson submitted that in this case where it was apparent that - of all the witnesses - it was the applicant who had the "greatest motive to tell untruths", the effect of the judge's direction was to point the jury's attention towards his evidence; and invited the jury to discount it. In that sense, it was contended, the direction undermined the presumption of innocence, tended to reverse the onus of proof, and rendered the trial unfair in a manner which had caused a miscarriage of justice. Reliance was placed upon Robinson v. R.[15], where the trial judge had instructed the jury that, in assessing evidence, they should consider what interest the witness has in the outcome of the case, and told them that they might think, although it was a matter for them, that the accused:

"had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely."

Not surprisingly, particularly having regard to the fact that such a direction had been given both early in the charge, and towards its conclusion, the High Court said that it was:

"... impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of [the judge's] directions concerning the interest of a witness in the outcome of a case."

The essence of the judge's directions, the High Court said[16], suggested to the jury that the accused had a greater interest than any other witness in the outcome of the case and, for that reason, had to be scrutinized by the jury more carefully than all other witnesses. As their Honours said[17]:

"The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused."

Such directions, the Court said, invited the jury to treat the accused as a "suspect witness" in the same way as an accomplice, and "did not sit well with the presumption of innocence which is the consequence of a plea of not guilty". However, the Court went on to point out that[18]:

"Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings."

147. It is, of course, trite to say that every case must depend upon its own peculiar circumstances; and that the impact of a judge's instructions to the jury upon the fairness of a trial will depend upon a range of circumstances, including the content of the directions, the context in which they were given, and the issues in the trial. However, for my own part, I am left in no doubt that the directions which were given by the trial judge in this case were of such a nature, and given in such context, that they did not have the impact attributed to them by counsel for the applicant. The essence of his Honour's directions to the jury was that the jury was to assess the applicant's evidence in the same way as they would assess the evidence of any other witness in the trial. It was in that context that the jury was told that a witness's evidence could be tested by considering whether there was a motive to tell untruths. In that context the jury was not being invited to treat the accused as a "suspect witness", nor - in my view - was the judge saying anything which undermined the presumption of innocence. Indeed, later in his charge, when reminding the jury of the cases made by the Crown and the accused, he again referred to the fact that the accused had the presumption of innocence on his side. And, finally, at the very end of his charge, and as a matter of re-direction, his Honour told the jury, again, how they should approach the evidence of the accused, in terms which are conventional in this State and which, in my view, are unexceptionable and would leave the jury in no doubt as to their approach. He said:

"In this case [the accused] gave evidence on oath. He [did] not have to do that. He could have declined to say anything ... Had he done so, no-one could have commented on it. He has the right to remain silent ... In this case he chose to give evidence, and by doing so he took the oath and said that he was telling the truth as to what his version of the events were. Were it not true, he could be prosecuted for perjury. More importantly, he submitted himself to cross-examination by the Crown. ... There are two things that you have got to bear in mind about this. First, a guilty person might well decide to brazen it out in the witness-box in the hope that he will be more likely to be believed if he takes the risk of being cross-examined than if he dodged it by staying in the dock and not giving evidence. ... Second, however, that an innocent person can do no more than giving evidence on his own behalf. This is what I say happened, he says, and I [pledge] my oath to it, and you can cross-examine me about it. That is ... what the accused did here. You should weigh both these comments when considering what weight you should give to the accused's evidence, remembering that the accused may be under more strain than other witnesses because he is the accused, and remembering of course that, by going into the witness box, he does not assume any burden of proof. The burden of proof still rests on the Crown. He does not have to prove anything to you; he simply puts his evidence in with the evidence of all other witnesses ..."

151. In the light of all the directions which the judge gave to the jury, and recognizing that an appellate court only has access to the printed words, I am left in no doubt that the jury were properly directed as to the manner in which they were to approach the evidence of the applicant; and that they would, themselves, have been left in no doubt that they were to regard his evidence - and assess it - no differently than the evidence of other witnesses in the trial. I do not accept the submission that the effect of his Honour's directions was to invite the jury to treat the applicant as a "suspect witness", or that - in some way - the presumption of innocence was being undermined. Certainly, trial counsel for the applicant did not so regard the directions, because he expressed no such concern.

154. It follows from the reasons which I have given that I would reject ground 12.

Ground 11 - Directions concerning "explanations" of the accused

158. Under cover of this ground, Mr. Holdenson contended that the judge erred, when directing the jury upon the onus of proof, and when telling them that they "had to exclude the applicant's explanations beyond reasonable doubt", by telling them that such explanations had to satisfy a test of reasonableness.

161. In the course of his directions to the jury, his Honour told them that the case being made by the Crown against the applicant was a circumstantial one. In this respect he gave them the following directions:

"The second thing I must tell you about a circumstantial case is that when you are considering whether you are satisfied beyond reasonable doubt, you cannot get to that state of satisfaction unless you exclude any reasonable hypothesis consistent with innocence beyond reasonable doubt. Now, in this case, in order to convict the accused you have got to exclude his explanations beyond reasonable doubt. It follows, you cannot convict McMahon unless you are able to say to yourselves, well, we are satisfied beyond reasonable doubt that his explanations are unacceptable. That follows as a matter of absolute logic. You could not be satisfied of his guilt beyond reasonable doubt if you thought that his explanations were probably true or even possibly true. It might be true. Provided you add the test of reasonableness. So you have to say to yourselves, we must exclude his explanations beyond reasonable doubt. Now, in this instance - you have got his explanations as to what happened. You have to exclude them beyond reasonable doubt. ... You have got to be satisfied that he was guilty beyond reasonable doubt. He says he did not do it, so you have to reject that explanation beyond reasonable doubt. But it is really just putting the coin the other way round. So, circumstantial evidence, any one piece may be insufficient, but if you put it all together, you may be satisfied of the guilt of the accused beyond reasonable doubt, but only if you have excluded any reasonable hypothesis consistent with innocence; and if any particular fact which is indispensable to your chain of reasoning ... you are satisfied beyond reasonable doubt of that fact." (my emphasis)

165. It is submitted by Mr. Holdenson that this direction was erroneous because it included the words which I have emphasized, namely "provided you add the test of reasonableness". Mr. Holdenson further submitted that the error was compounded by directions which the judge had earlier given to the jury about the manner in which they could use the statements made by the applicant in his record of interview to the police. His Honour had told the jury that they could use such of those statements "if they are statements which are against his interests on the basis that the law presumes that someone will not say something against their interest unless it is true". Accordingly, the judge had told the jury that the accused had admitted during the course of the interview that he was "in the house at all relevant times"; that "he had heard the bang and took off" which, again, could be used "as an admission that he was in the house at all relevant times whilst [the] murder must have been committed". His Honour further went on to direct the jury that:

"... in particular here, the record of interview clearly puts him at the scene of the crime at all relevant times. When [the deceased] was murdered, as he undoubtedly was, on any view the accused must have been in the house. There is no other way the facts could be seen other than in that way. If you accept his own admissions and, indeed, his own evidence in the case in any event. But those out of court statements can be used in that way."

Mr. Holdenson submitted that these directions were erroneous in the sense that they were telling the jury that they could only use the statements in the record of interview as admissions against interest, and - at least inferentially - denied to the jury the right to use statements or explanations made or given by the applicant in his interview as statements or explanations in his favour. This, it was contended, was contrary to law. He referred to R. v. Su & Ors.[19].

170. In my opinion, there is no substance in this ground of appeal. The statement in the initial direction that "provided you add the test of reasonableness" would not have misled the jury into a misconstruction of the essence of his Honour's directions in respect of circumstantial evidence, namely that before they could be satisfied of the applicant's guilt beyond reasonable doubt, they were required to exclude any reasonable hypothesis consistent with his innocence (my emphasis). In the context of the whole of the directions which were given the jury would have understood his Honour's directions to mean no more than this. In cases where the evidence is circumstantial, it is customary for judges to direct the jury that the guilt of the accused must be established beyond reasonable doubt, and to tell them - where appropriate - that they should entertain such a doubt where any other reasonable

inference consistent with innocence is reasonably open on the evidence[20].

174. Nor, in my view, were his Honour's directions about the use which the jury could make of the statements made in the record of interview - in the context in which they were given - erroneous. Those directions were made in a context which was divorced from the directions on circumstantial evidence, and were directions in which his Honour was emphasising the fact that the jury were entitled to use the statements made in the record to conclude - as the Crown had contended - that the applicant must have been in the unit at the time when the murder was committed. Where appropriate - and in this case it was - the judge may, and should, point out to the jury that the incriminating parts of such a record of interview are likely to be true; otherwise why say them[21]. The attempt by applicant's counsel to "marry" the two quite distinct passages in his Honour's charge for the purposes of suggesting error is, in my view, quite unjustified. Indeed, in this case it was the explanations given by the applicant in his sworn evidence that were being relied upon as those which the jury should regard as hypotheses reasonably consistent with innocence.

177. I would, therefore, reject this ground. The application for leave to appeal against conviction should be dismissed.

181. I agree with Winneke, P., for the reasons he has stated, that the application for leave to appeal against conviction should be dismissed_._

186. I agree that the application for leave to appeal against conviction should be dismissed for the reasons advanced by Winneke, P.

[1] [1966] VicRp 42; [1966] V.R. 306.

[2] [1967] VicRp 83; [1967] V.R. 706.

[3] [1967] VicRp 51; [1967] V.R. 467 at 473.

[4] [1960] VicRp 22; [1960] V.R. 141.

[5] R. v. Masin [1970] VicRp 49; [1970] V.R. 379 at 381-2 per Winneke, C.J.

[6] cf. Eastman v. R. [2000] HCA 29; (2000) 203 C.L.R. 1.

[7] cf. R.D.M. v. D.P.P. [1999] VSCA 86; [1999] 2 V.R. 270.

[8] Ss. 20-22 Crimes (Mental Impairment and Unfitness to be Tried) Act.

[9] [1993] HCA 63; (1993) 178 C.L.R. 193.

[10] R. v. Perera [1982] VicRp 91; [1982] V.R. 901 at 911.

[12] (1986) 5 N.S.W.L.R. 697.

[15] [1991] HCA 38; (1991) 180 C.L.R. 531.

[19] [1997] 1 V.R. 1 at 64-5.

[20] cf. Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R. 573 at 579 per Dawson, J.; R. v.Bogunovic [1999] VSCA 133 at [39] per Winneke, P.; at [49] per Callaway, J.A.

[21] R. v. Duncan (1981) 73 Cr.App.R. 359 at 365.