R v Panozzo [2007] VSCA 245

1 On 29 October 2001, the applicant, Richard Xavier Panozzo, who is now aged 41 years, was presented jointly with his co-offender, Joseph Iaria ('Iaria'), before the Supreme Court at Wangaratta for the murder at Tawonga, on 5 May 2000, of Peter Francioli ('the deceased'). The applicant and Iaria pleaded not guilty. On 14 December 2001, the jury returned verdicts of guilty to murder against each accused. On 24 November 2003, this Court set aside the convictions and ordered a retrial, essentially because of a fundamental irregularity that occurred in the empanelment of the jury which rendered the trial a nullity. On 2 April 2004, an application for a separate trial lodged on behalf of the applicant was refused but that decision is not the subject of a complaint before us. In the result, on 5 May 2004, the applicant and Iaria were again presented in the Supreme Court at Melbourne for the murder of the deceased. Both pleaded not guilty to the charge of murder, but the trial judge left for the consideration of the jury the alternative verdict of manslaughter notwithstanding that neither the Crown nor the accused contended for such a verdict. On 4 June 2004, the jury returned verdicts of guilty of murder in respect of each accused. After hearing pleas in mitigation of penalty on behalf of each offender, on 6 August 2004, the learned sentencing judge sentenced the applicant to 20 years' imprisonment with a non-parole period of 15 years and imposed an identical sentence in respect of the co-offender, Iaria. The applicant now seeks leave to appeal against conviction. Although notice was given on his behalf that he proposed to seek leave to appeal against sentence, this claim was not pursued.

**2 The background and circumstances of the offence as they relate to the applicant are as follows. At the time of the offence, he was aged 34 years and Iaria was aged 26 years, as was the deceased. The deceased had come to know the applicant and Iaria when he was living in Mount Beauty where the applicant was also residing with his de facto wife and their two children. Some years prior to this the applicant's family owned a tobacco farm in Mount Beauty which they sold to the deceased's father. By the time of the shooting, the deceased, with the assistance of his brother, Polibio Francioli ('Polibio'), were principally responsible for working the farm where they also grew marijuana, producing, in 1999, a crop that was valued between $5,000 and $10,000. It seems that, some time before the offence, the applicant had entered into an arrangement with the Francioli brothers whereby he would sell the marijuana on their behalf. He harvested the marijuana, weighed it, and accounted to the Franciolis from time to time in relation to the sales.

3 The relationship between the parties became strained when the Franciolis formed the view that the applicant was not paying them the true value of the crop. It appears also that there was a degree of personal acrimony between Polibio and the applicant's de facto wife. Be that as it may, having sold the 1999 crop, the applicant supplied the Franciolis with 5000 marijuana seeds for the next crop in the belief that he would sell the crop for them in the same manner as before. In the event, this did not happen; the Franciolis had decided to sell the marijuana crop through another person, but falsely told the applicant that they would not be producing another crop because they feared detection. At about the same time, a dispute arose between the applicant and Polibio when the applicant did not honour an agreement to sell him a rifle and a motor vehicle. The applicant was paid the agreed $1,500 by Polibio for those items but he failed to supply them. As a result, Polibio threatened to seize goods from the home of the applicant's de facto wife to settle the debt. In the course of this dispute, Polibio told the applicant that his children were not worth $500, implying that he might cause them harm.

4 By way of background to Iaria's involvement in the offending, one of his activities was dealing in illegal tobacco leaf, colloquially known as 'black market tobacco', which involved the evasion of sales tax. It appears that approximately one week before the shooting, Iaria, who was heavily indebted, purchased from the deceased 8 bales of tobacco leaf and on-sold it for a profit of between $2,000 and $3,000. This was the first dealing between those parties although, as we have said, Iaria had dealt in untaxed tobacco on other occasions to supplement his income. He had also been involved in the sale of marijuana to a number of people, including the applicant and his de facto wife. In the days preceding the offending, Iaria ordered from the deceased another 15 bales of tobacco leaf for a total contract price of $16,500 to be paid in cash on delivery. On 4 May 2000, he attended the deceased's farm and while there saw the marijuana that the Franciolis had planted from the seeds supplied to them by the applicant which, by then, had been harvested and were hanging out to dry in a disused tobacco drying shed. Iaria told them that he might be able to buy the whole quantity at a price of $3,000 to $5,000 per kilogram, but in the end no agreement could be reached as to the price. Subsequently he telephoned the applicant's de facto wife and tried to interest her in buying some of the marijuana. It was in those circumstances that the applicant discovered that the Franciolis had lied to him about not growing the marijuana crop and that they intended to sell it through another agent. The learned sentencing judge said that it was clear that the applicant decided he would teach the Franciolis a lesson.

5 At about 4 pm on the afternoon of 5 May 2000, Iaria met the Franciolis at their farm to take delivery of the tobacco leaf that he had agreed to purchase. He told them they would receive payment after he had delivered it to the buyers and instructed them to meet him at certain sheds near the Mount Beauty airport for the purpose of collecting payment. On delivering the tobacco leaf to his buyers, Iaria cleaned all traces of it from the truck and a short time later drove in his car to Tawonga where he had arranged to meet the applicant. There the two sat in Iaria's car drinking beer and in the course of their discussions agreed that both would go to the meeting that Iaria had arranged with the Franciolis and determined to lure them to his uncle's farm (where no-one would be at home). As the learned sentencing judge said, it seems that at that point in time Iaria wanted to avoid, or at least delay, the payment to the Franciolis of the $16,500 for the tobacco leaf and the applicant intended to confront them over his exclusion from the marijuana deal and in relation to the threats directed to his family.

6 The offenders drove in separate cars to the farm of Iaria's uncle and, once there, Iaria parked his car in clear sight of the tobacco shed while the applicant parked his car out of sight. Iaria took a .22 Magnum rifle from the gun cabinet in the house and loaded it with five rounds of ammunition, test firing one round in the presence of the applicant. He telephoned the deceased and instructed him where to meet him, telling him to park his vehicle in the vicinity of tobacco drying kilns that were located on the southern side of the farm. Iaria told the deceased that he would see his car parked near the outside light of the shed and told him to meet him inside it. He said nothing about the applicant's presence at the farm. The two offenders then hid in the darkness.

7 Shortly thereafter, the Franciolis arrived in the deceased's car and waited for Iaria in the shed for some five to ten minutes. When Iaria did not appear, the deceased returned to his vehicle to obtain his mobile telephone, leaving his brother to wait at the designated spot. It was the Crown case that, as the deceased sat in his car, Iaria approached it from behind and yelled at the deceased 'Get down, you fuckwit' or 'Get down you fucking dog' and hit him in the mouth, most probably with the barrel of the rifle, causing a fracture of his upper left jaw, a torn fraenulum and abrasions to his upper and lower lips. Iaria then fired at least two shots. The first bullet missed the deceased and lodged in the A-frame of the car. Iaria re-cocked the weapon and fired at the deceased. The bullet entered his body at the top of his back to the left of his spine and travelled down through his left lung and into his abdomen until it came to rest in his spleen. Although wounded, the deceased managed to call out to his brother 'Get the fuck out of here', whereupon Polibio ran and hid in the shed. At about the same time, the applicant emerged from his hiding place, yelling 'Who the fuck is there?' and 'Kill them. Kill them both'. At that point, Iaria dropped the rifle and ran into the shed in the direction of Polibio, repeatedly crying out 'Polibio, Polibio, we must help Pete'. Notwithstanding that he was mortally wounded, the deceased also ran into the shed. On the Crown case, the applicant picked up the rifle that had been dropped by Iaria and chased after the deceased until the deceased collapsed at the north-east corner of the shed. Polibio escaped, running across some paddocks to raise the alarm at a nearby property. The applicant and Iaria put the deceased's body into the boot of his own car. Thereafter the applicant drove to his parents' home near Wodonga, while Iaria drove the deceased's car to a secluded spot and attempted to set it alight. When this failed he ran back to the farm, collected his car and the weapon and then drove home where he showered and washed his clothes to eliminate the physical evidence of gunshot residue and the deceased's blood. He disposed of the rifle in a pond.

8 The Crown alleged that, in order to avoid detection, the applicant and Iaria told the authorities a succession of lies. Iaria first told police that fictional characters called 'Steve the Leb', 'Rob from Wodonga' and another unnamed person were responsible for the death of the deceased; then he said that the gun had fired when the deceased made a rapid move. And in his final version, given after he was arrested, Iaria said that the applicant had killed the deceased.

9 The applicant's case also changed over time. When first interviewed by police he told them that he had never been to the Iaria farm and knew nothing of what had gone on there on 5 May 2000. He attempted to create a false alibi that he got home from Wodonga on that evening during the first quarter of a televised football match. Later, he admitted that he had been at the farm but claimed that his only purpose in being there was to buy marijuana. He said that he had no idea who else would be at the farm and that when the shooting occurred he was at the dairy shed and saw nothing of what had gone on. He claimed he did not shoot the deceased.**

10 In his sentencing remarks, the learned judge said that Iaria had been the shooter. His Honour so concluded on the basis of evidence that included police interviews, in which Iaria came close to making admissions that he fired the two shots, and his post-offence behaviour - the disposal of the weapon and washing his clothes - that indicated a consciousness of guilt to that effect. In respect of the applicant, his Honour regarded the jury as having found him 'guilty of the murder as a participant in the arrangement to use a loaded firearm to confront the deceased and either kill him or inflict really serious injury on him, or as an aider and abetter'. His Honour did not differentiate between the offenders in terms of the gravity of their conduct. In particular, the judge did not accept the applicant's claims that he did not yell out 'Kill them. Kill them both' and that he did not chase after the deceased. As his Honour said, both the applicant and Iaria went to the farm with the intention of confronting the Franciolis and to that end had with them a loaded firearm that had the capacity to fire multiple shots in rapid succession. The jury, his Honour said, found that one offender had intended to kill or seriously injured the deceased and that the other went to the farm either as a participant in the criminal enterprise or as an aider and abetter.

11 When the applications came on for hearing before us the applicant's counsel sought leave to add grounds 4 to 7 to his Full Statement of Grounds that related to the conviction application in accordance with the notice that had been provided to the Court and the respondent. We were told that they would be the only grounds that would be pressed. There being no objection from the respondent to the proposed course, leave was granted to add the new grounds. We now turn to consider them and do so broadly in the order in which they were argued.

Ground 4 - error in directions on consciousness of guilt

Impugned conduct not capable of constituting evidence of consciousness of guilt

**12 It was submitted under cover of grounds 4(a) and (b) that his Honour erred in telling the jury that the alleged lies and post-offence behaviour of the applicant to which reference is made below were capable of amounting to evidence of consciousness of guilt of murder on his part. Logically, it was said for the applicant, such conduct could not support a conclusion that the applicant was guilty of murder rather than manslaughter and in those circumstances the conduct was not admissible to establish evidence of consciousness of guilt of murder. Counsel argued that, at most, the conduct was only capable of establishing consciousness by the applicant of his involvement in some sort of unlawful conduct. It was the applicant's case at trial that he did not cause the deceased's death nor was he complicit in any action which produced that result and, therefore, he was guilty neither of murder nor manslaughter. In other words, the actus reus was denied as was any complicity in the killing of the deceased.

13 Before final addresses, his Honour heard submissions as to whether any, and if so what, conduct of the applicant could be left to the jury as evidencing consciousness of guilt of murder on his part. In the result, the learned trial judge charged the jury on the basis that the following behaviour of the applicant could be considered by them as amounting to evidence of such consciousness of guilt. First, the judge referred to the applicant's lies in his sworn statement to police of 7 May 2000 that he had not been to the Iaria farm on the day in question, or at all, and, in particular, that he had never taken his car onto the farm. Secondly, there was the applicant's post-offence conduct of departing immediately after the incident to Wodonga; visiting Polibio on 6 May 2000 with his hair shorn to offer condolences on the death of his brother; his request of Laticia Wilson to remind Brendan Vail of the time at which he left Vail's home on 5 May 2000 and his later request of Vail to say that he had not left his home until 7.30pm on 5 May and that he was then wearing a dark t-shirt and pants.

14 The evidence in relation to the applicant's discussion with Laticia Wilson and Brendan Vail was this. Brendan John Vail gave evidence that in the late afternoon or early evening of 5 May 2000 the applicant unexpectedly arrived at his home and stayed for about 45 minutes during which they smoked some marijuana. The witness identified a jacket as being the jacket that the applicant wore when he visited him on 5 May 2000. He also said in his evidence that after the shooting the applicant asked him to say that he left his residence on 5 May 2000 at 7pm or 7.30pm.

15 Laticia Wilson said in her evidence that on 7 May 2000 she received a telephone call from the applicant who told her that he had been questioned by the police because Iaria was blaming him for the murder of the deceased. She said that, later, he called back and asked her to tell Brendan Vail to say, if asked, that he, the applicant, had left Vail's house between 7 and 7.30pm on 5 May 2000 and to remind him of that time and to say that he was wearing a black shirt and blue jeans. She said that she asked the applicant why and he said 'Just in case [he] has been smoking too much and gets confused and stuffs things up for me'. Ms Wilson also said that she asked the applicant why Iaria was blaming him and he said that Iaria must be 'a scared little boy'.

16 It is relevant for the purposes of the applicant's claim under cover of ground 4 to refer to his Honour's charge that related to the question of consciousness of guilt. The learned trial judge began this aspect of his charge in accordance with the requirements set out in Edwards v The Queen[1] ('Edwards'). He reminded the jury that people tell lies all the time and for all sorts of reasons. Unlike other evidence in this case, said his Honour:**

... the fact that someone has told a lie is ordinarily not treated as a fact from which you can draw an inference of guilt. The lie as such does no more than reflect adversely upon the man's credit and reliability in what [he] may have said in this case. ... Just as in ordinary life, one is prone to doubt the word of someone who one knows tells lies; so, too, when it comes to assessing the truth of what has been said in this case, you are entitled to take into account as reflecting adversely upon credit the fact that people have been shown to tell lies.

His Honour went on to tell the jury, by reference to a number of examples, that one may tell lies for reasons that had nothing to do with consciousness of guilt. Consequently, the judge told the jury, if they thought that there was an innocent explanation for any of the lies that they found to have been told in this case, they should treat them accordingly as reflecting on no more than credit. The judge then reminded the jury that the Crown has invited them to infer consciousness of guilt on the part of the applicant from his post-offence conduct.

**17 His Honour said that he would identify the lies first and then give the jury the rules that they needed to bear in mind in deciding whether it was appropriate to treat any of the behaviour in question as being capable of constituting evidence of consciousness of guilt. In that context, his Honour first dealt with the situation relating to Iaria. He identified precisely the lies on which the Crown relied as establishing consciousness of guilt on his part. He then told the jury that three strict rules or requirements had to be satisfied before they could use a lie as constituting evidence of consciousness of guilt as opposed to something that reflected simply upon credit. First, they had to be satisfied beyond reasonable doubt that the statement on which the Crown relied was in fact made and that it related to a matter that was material to the issues at the trial. Secondly, they had to be satisfied beyond reasonable doubt that the statements were in fact lies, in the sense that they were deliberately false, the accused knowing that they were false at the time they were made. Thirdly, his Honour emphasised that the jury also had to be satisfied beyond reasonable doubt that the only reasonable explanation for telling a lie 'was consciousness of guilt of this crime of murder with which he is charged and not some other reason such as wrong doing like trading in marijuana or tobacco or shielding someone or panicking or whatever it might be ...'. The judge said that only if they were satisfied that the three requirements had been made out, could the jury 'use the telling of the lies as signalling consciousness of guilt and thus as constituting evidence of guilt of the offence.'

18 The learned trial judge then dealt with the Crown's case on consciousness of guilt in relation to the applicant. As with the case against Iaria, his Honour first identified the applicant's alleged lies and post-offence conduct which the Crown claimed evidenced his consciousness of guilt. In relation to the applicant's sworn statement of 7 May 2000, in which he said that he 'had no involvement whatsoever in the killing of Peter Francioli and I am happy to provide detail of my movements to assist the police', the judge pointed out that in his statement describing what he did on the day of the murder, the applicant ostensibly 'covered the whole of the day excluding the possibility that he spent part of the day at the Iaria farm.' His Honour explained that the Crown case was that it was a lie to say, as the applicant claimed, that he had not been at the crime scene at all that night. His Honour also pointed out the second alleged lie in the applicant's sworn statement on which the Crown relied, namely, that he had never been to the farm. The third alleged lie on which the Crown relied as described was that he had never taken his car onto the farm.

19 His Honour then dealt in his charge with the four aspects of the applicant's post-offence conduct to which reference has been made and which the Crown said amounted to evidence of his consciousness of guilt: the applicant's immediate departure for Wodonga after the shooting; his visit to Polibio on 6 May with his hair shorn; his request of Laticia Wilson to remind Brendan Vail of the time which he said he had left Vail's home on 5 May 2000 and his request to Vail to say that he, the applicant, had not left Vail's home until about 7.30pm on 5 May and that he was wearing a dark T-shirt and pants. The jury were told in clear terms that, as with the case of Iaria, before they could use any of those acts as constituting evidence of consciousness of guilt, they would have to be satisfied that the three requirements to which they were earlier referred had been made out. In that context, the jury were reminded that, as a condition precedent to their treating any of the acts in question as evidence of consciousness of guilt on the part of the applicant, they had to be satisfied beyond reasonable doubt that his conduct was the result of his desire to escape the consequences of having murdered the deceased and 'not to escape the consequences of involvement in marijuana or some other offence or because of panic or whatever else it might be'. At the conclusion of this aspect of his Honour's charge, he said this:**

If, however, in the course of your deliberations you were to consider that there is some other statement that the Crown does not so rely upon but which you think may be a lie constituting evidence of consciousness of guilt, you must first of course before you could use it in that fashion be satisfied of the three tests that I have outlined for you, namely, first, that the statement was made about a matter which is material; secondly, that it was truly a lie in the sense that it was a deliberate falsehood; and thirdly, that the only reasonable explanation for the telling of the lie was evidence of consciousness of guilt rather than some other explanation be it consciousness of guilt of a lesser offence or panic or protecting someone else or whatever it might be.

20 It is apparent enough, we think, that his Honour's comprehensive charge on these matters was made in accordance with the law as it stood at the time, more particularly, as it was established in R v Woolley[2] ('Woolley'), and restated in R v Rice,[3] in the following terms:

There is no authority for the proposition that the accused must be found to have acted out of a consciousness of guilt of a particular offence where the wrongdoing may cover a number of possible charges. Thus, where a serious assault has taken place, it would be fanciful to make a possible resort to the conduct in question by the jury depend on whether the accused had a consciousness of guilt of particular offences such as causing grievous bodily harm, or actual bodily harm or common assault. [4]

It seems to us that, at the date of the charge, what his Honour relevantly told the jury concerning consciousness of guilt was in accordance with authority,[5] as counsel for the respondent submitted.

**21 Subsequent to the applicant's conviction, however, this Court essentially decided, in R v Heyes[6] ('Heyes') and in R v Ty[7] ('Ty'), that where an accused is charged with a number of offences, or is charged with a single offence but the judge leaves alternative included offences to the jury, the judge must ordinarily instruct the jury that they may not use lies or flight as evidence of consciousness of guilt of any offence more grave than the least serious of the offences with which they are concerned. The applicant relied on these authorities for his principal complaint under these grounds, arguing that, because the evidence could not support the conclusion that the applicant was guilty of murder rather than the alternative included offence of manslaughter, the applicant's relevant behaviour could be no more than evidence of consciousness of guilt on his part that he had acted unlawfully. Hence, it was submitted to us by the applicant's counsel, his Honour erred by leaving that conduct to the jury as being capable of amounting to evidence of his implied admission of guilt of murder.

22 Since argument in this case concluded, a Bench of five heard argument in R v Ciantar[8] ('Ciantar'), to which reference is made more fully later, where it was contended that Heyes and Ty should be confined to their facts and that post-offence conduct was not incapable of amounting to evidence of consciousness of guilt of a more serious offence merely because it could be said that it was capable of amounting to evidence of consciousness of guilt of a lesser offence. For obvious reasons, we withheld concluding our consideration of the present grounds until the publication of the decision in Ciantar and the provision to us of supplementary submissions by the parties in light of that decision.

23 Before referring more fully to Ciantar, we note for completeness that in this case, unlike the situation in Heyes, the applicant denied involvement in the actus reus so that we think there is much force in the respondent's submission that, on that basis alone, the present case is materially distinguishable from Heyes. In that case, Buchanan JA said[9], essentially by reference to a number of Canadian decisions, that, subject to two qualifications which are not immediately relevant, where the Crown asserts a pleaded offence and an unpleaded alternative offence '... the jury should be directed that they cannot reason that lies or flight support an inference that the accused committed a particular offence, but bear only upon the question whether the accused was implicated in unlawful conduct'. Charles JA generally agreed with that reasoning but drew a distinction[10] between the case where the accused denied any involvement in the actus reus and the case where involvement in the actus reus was admitted and the issue was relevantly limited to intent. In the former class of case, of which this case is an example, his Honour considered that post-offence conduct may be relevant to the question of consciousness of guilt. Similarly, in Ty the issue was the applicant's intent when the fatal blow was struck. In that case it was held, following Heyes, that the post-offence conduct - flight, abandonment of clothing and hiding a weapon - was irrelevant to the issues of consciousness of guilt. Thus, as we have said, an important, if not critical, aspect of both above cases was that at trial the applicant did not deny playing any part of the actus reus. By way of contrast, the applicant in this case asserted that not only did he not cause the victim's death, but claimed that he was not complicit in any action which brought that about.

24 Be that as it may, as explained in R v Dickinson[11] ('Dickinson'), in Ciantar the Court accepted that evidence of post-offence conduct can only give rise to the inference of consciousness of guilt if the jury were satisfied that it sprang from a realisation of guilt of 'the offence charged'[12] as opposed to guilt of a lesser offence. It was also said in Ciantar that where, as here, consciousness of guilt - which is an implied admission of guilt - is only one of the circumstances on which the Crown relies to establish guilt, just as in the case of any other form of circumstantial evidence on which the Crown might rely, the existence of consciousness of guilt may be established without applying any particular standard of proof.[13] Nevertheless, it was emphasised that to be satisfied that the post-offence conduct gives rise to such an inference the jury must be satisfied that there is no other explanation for the conduct that is reasonably open on the facts.[14] But it was accepted in Ciantar that there may be cases where the post-offence conduct is equally consistent with consciousness of guilt of two or more offences or is otherwise intractably neutral and that, in such circumstances, an inference cannot be drawn from the post-offence conduct that the offender had a consciousness of guilt of any particular offence.[15] As their Honours made plain, however, that will not usually be so, particularly where the impugned conduct is considered in the context of the totality of the evidence. The Court said:**

... even allowing that a possible explanation of the applicant's post-offence conduct was that he was conscious that he had committed one or more of the lesser offences, as opposed to the offence charged, it does not follow that the post-offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he committed 'the offence charged'.[16]

25 In that case the applicant was charged with culpable driving causing death whilst under the influence of alcohol contrary to s 318 of the Crimes Act 1958. It was argued on his behalf that evidence of his departure from the scene could not be used to establish consciousness of guilt of culpable driving as distinct from any of the lesser offences. This argument was rejected because, although it may have been possible that the applicant's impugned conduct was explicable on the basis that he was conscious of having committed a lesser offence, it did not follow that the conduct was not capable of giving rise, in the context of the totality of the evidence, to the inference of consciousness of guilt of the offence charged. The Court said:

... where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect. Similarly, where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of ... another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.[17]

26 Importantly, the Court essentially accepted the law on this issue as laid down by the Court of Criminal Appeal in Woolley. Their Honours in that case considered that there is no authority that the accused must be found to have acted out of a consciousness of guilty of a particular offence. As the court there said:

It has been the practice to direct juries in cases of false denials or flight or similar cases in terms of whether the evidence in question demonstrates a consciousness of guilt of the offence charged. The reference to the offence charged is an obvious and usually convenient way of relating the conduct to the material wrongdoing, as opposed to some other wrongdoing. There is no authority for the proposition that the accused must be found to have acted out of a consciousness of guilt of a particular offence where the wrongdoing may cover a number of possible charges. Thus, where a serious assault has taken place, it would be fanciful to make possible resort to the conduct in question by the jury depend on whether the accused had a consciousness of guilt of particular offences such as causing grievous bodily harm, or actual bodily harm or common assault. It would in our opinion be equally fanciful to require as a precondition to possible use of the conduct that the accused had turned his mind to particular alternatives such as murder or various categories of manslaughter.

That is not to say that a jury should not consider the particular conduct in the light of a particular charge where there are a number of separate charges, whether as separately listed counts on the presentment or as statutory or common law alternatives of the count or counts on the presentment. This is part of the jury's obligation to consider each charge separately. Thus, the jury would be obliged to consider the evidence relevant to each count separately and so consider as part of this evidence the conduct in question, whether it be lies or flight. No doubt in this process it may be useful to ask whether the conduct betrays a consciousness of guilt of that charge but this is not an obligatory formula. It would seem preferable for the jury to be directed that if they are satisfied that the statements were made and were not true, then it is open to the jury to add these statements to other evidence to assist in drawing an inference of guilt. The drawing of inferences will itself be the subject of a separate direction, including the customary direction that no inference of guilt can be drawn unless it is the only reasonable inference open.

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

The use of the inquiry as to consciousness of guilt of the crime charged may be convenient in the majority of cases but it would not be appropriate in all cases. It is a mistake to convert this inquiry into a rigid formula. As was pointed out in Perera [[1982] VR 901; [1982] VicRp 91; (1982) 6 A Crim R 225] at 905; 230:

'These considerations render it unwise, if not impossible, to attempt to formulate general propositions or rules which will govern the occasions on which lies told by an accused person, whether in court or out, will give rise to an inference that he is thereby displaying a consciousness of guilt. Everything must depend upon the circumstances of the particular case.'

In the present case the directions given by the learned trial judge did not, in speaking of consciousness of guilt, refer to each alternative to the principal charge on the presentment. For the reasons already indicated, it is not in our opinion necessary or indeed desirable to adopt such an artificial approach. The critical matters that had to be addressed in the context of this case were that the jury should understand that lies may be told for reasons that do not indicate consciousness of guilt of murder and that the defence explanations of self-protection or fear were put to the jury. The direction here clearly dealt with these matters.[18]

27 It is apparent from what we have said that in this case, unlike the situation, for example, in Woon v The Queen,[19] the applicant's post-offence conduct was not the only item of evidence on which the Crown relied to establish an implied admission of murder on his part. As his Honour made plain to the jury in this case, they were asked to consider whether that conduct, looked at in the context of the whole of the relevant evidence, demonstrated on the applicant's part consciousness of guilt of murder of the deceased. In our view, there is no relevant error in his Honour's charge as is claimed by the applicant, and it cannot be said that it was productive of a miscarriage of justice. We note for completeness that, although not determinative of the issue, this must have been the view of the applicant's experienced trial counsel, and that of the experienced prosecutor, given that neither suggested to his Honour that there was relevant error in that aspect of his charge such as to require a re-direction.

Proportionality between offences and alleged conduct

**28 It was further contended for the applicant that his Honour erred in failing to direct the jury on the question of proportionality as it related to evidence of consciousness of guilt. It was said that aspects of the applicant's post-offence behaviour was so innocuous or equivocal as to lack probative value, although some was capable of assisting the jury to determine whether he may have been involved in a particular crime. In that context, it was said that his Honour failed to contrast the lies and post-offence behaviour of Iaria with those of the applicant. Had this been done, it was claimed, it would have demonstrated that the applicant's post-offence conduct and lies were relatively insignificant when compared with those of Iaria, namely, his disposal of the gun, his attempt to burn the car and the body and the washing of his blood-stained clothes. In this respect reliance was placed on what was said by Charles JA in Heyes. But in our view all that his Honour relevantly said in that case was that, for the purpose of determining whether the post-offence conduct was evidence of consciousness of guilt of the crime charged or of a lesser offence, the jury could have regard to the accused's 'actions afterwards as disproportionate to the lesser level of culpability put forward in his defence'.[20]

29 We consider that there is no merit in this ground given that, as already outlined, his Honour's comprehensive charge was in accordance with Edwards and made plain to the jury that it was for them to decide whether the three requirements that his Honour outlined to them had been established in relation to the applicant. We consider that no miscarriage of justice arose by reason of the fact that his Honour did not contrast the relevant behaviour of the applicant with that of Iaria and tell them that some post-offence conduct might be considered as being so innocent or so equivocal as to have no probative value on the question whether the conduct as a whole amounts to an implied admission of guilt. No request was made that his Honour give such a direction, which would have been opposed by Iaria. It seems to us that none of the lies and post-offence conduct that were ultimately left to the jury on the question of consciousness of guilt could be properly characterised as lacking in the requisite probative value. In any event, as we have said, his Honour directed the jury on the basis of Edwards. This direction, we think, was sufficient to guard against any realistic likelihood of a miscarriage of justice arising from his Honour not drawing the jury's attention to the question of proportionality.**

**30 It was also submitted under cover of ground 4(d) that his Honour erred because, as has been mentioned,[21] he left it open to the jury to conduct their own search for other alleged lies or post-offence conduct that might then impermissibly be relied on by them as evidence of consciousness of guilt. Such an approach, it was said, was contrary to the law, and in that respect counsel referred to R v Ali (No 2)[22] and Ty.[23]

31 We consider that there is no merit in this claim. More particularly, no miscarriage of justice could be said to have arisen in this case by reason of the impugned passage in his Honour's charge to which reference has been made. His Honour did not say anything, in our view, that could be said to have amounted to an invitation that the jury should search out for themselves other statements that amounted to lies and post-offence conduct that could give rise to evidence of consciousness of guilt. Rather, properly characterised, what his Honour said made it apparent that the jury was to have regard only to the lies and post-offence conduct that he identified for them. As a matter of caution he told them that even if they were to come across other material which they considered to fall into that category, they were required to ensure that the three rules which he said bound the jury were complied with before reliance could be placed on such matters as evidence of consciousness of guilt.

32 We note for completeness that neither the applicant's experienced trial counsel nor the experienced prosecutor invited his Honour to re-direct the jury on the question of 'proportionality' or the risk of the jury being 'left at large'. Although not determinative of the matter, it is a strong indication that they considered that there was no real risk of miscarriage of justice occurring by reason of the now alleged defects in the charge.

33 For these reasons, we consider that ground 4 should fail.**

Ground 5 - error in directions on manslaughter

**34 The principal complaint under ground 5 was that, probably inadvertently, his Honour failed to leave manslaughter to the jury on the basis of complicity (in its three forms - common purpose, extended purpose, and aiding and abetting) and, given the other defects in his Honour's charge in respect of manslaughter to which reference will be made, his Honour's error resulted in a miscarriage of justice.

35 Before considering the specific complaints made in this regard it is necessary to set out the relevant aspects of his Honour's charge that form the context in which these matters should be considered. The circumstances in which his Honour came to charge the jury on murder and manslaughter, and his actual charge on those matters, were the following. At the conclusion of the Crown case, after discussing with counsel in terms of principle the bases on which the jury were to be told they could find murder or manslaughter as against each of the accused, his Honour essentially said that he intended to tell the jury that it would be open to them to convict each of the accused of murder on one of four bases: direct and intentional killing of the deceased by one of the accused with the relevant intent; and as to the co-accused, on the basis of complicity with the shooter, acting in concert with him, or within the principles of extended common purpose, or aiding and abetting the shooter. Alternatively, his Honour said, the jury would be told that if they were not satisfied beyond reasonable doubt that the shooter had the relevant intent, they could find the accused guilty of manslaughter either on the basis of direct 'unlawful and dangerous' act manslaughter, or Markby manslaughter,[24] or complicity in such an act. In the event, his Honour charged the jury on those matters by reference to a written summary of the principles (that was settled by counsel) which he gave them in the course of the charge. Page 1 of the summary set out the elements of murder, page 2 the elements of manslaughter by a dangerous and unlawful act, pages 3 to 5 the elements of common purpose, extended common purpose and aiding and abetting respectively, and page 6 contained the essential elements of Markby manslaughter.

36 His Honour first explained to the jury the elements of the offence of murder as they were summarised by him in the handout. Nothing arises for present purposes from those aspects of his Honour's charge. The learned trial judge then turned to the matter of manslaughter and did so initially by reference to page 2 of the handout that sets out the elements of manslaughter by an unlawful and dangerous act. His Honour explained:**

In this case, as you know the charge that the Crown makes against each accused man is a charge of murder, not manslaughter, and neither man suggests that he is guilty of manslaughter. The Crown alleges that each man is guilty of murder, not manslaughter, and each man denies that he is guilty of manslaughter. Nevertheless, I am bound as a matter of law to explain to you that if an accused is charged with murder and the Crown established that the accused caused the death of the deceased by a conscious, voluntary and deliberate act which was unlawful and dangerous, then in the absence of an intent to kill or inflict really serious physical injury, it is open to you to convict on the basis of manslaughter.

The difference is that whereas in murder the act must be done with intent to kill or inflict really serious injury, in manslaughter that intent is absent, it is enough that the act which causes the death be unlawful and dangerous. Say, for example, in this case if you were satisfied that one of the accused had fired the round that caused the death of Peter Francioli and that he had so fired it as a conscious, voluntary and deliberate act, but that you were not satisfied that he had the intent to kill or inflict really serious physical injury, it would be open to you to convict on the basis of manslaughter because it would be plain that the killing would have been caused by an unlawful dangerous act or acts committed voluntarily and consciously without the intent to kill or to inflict really serious physical injury.

37 The learned trial judge then examined, in the context of the Crown case against Iaria, the doctrines of common purpose, extended common purpose and aiding and abetting, the elements of which were respectively set out on pages 3 to 5 of the handout. At the conclusion of his discussion of common purpose, his Honour said:

If you were satisfied that they had made an agreement to rip off but you were not satisfied beyond reasonable doubt that it was in the scope of their arrangement to shoot to kill or inflict really serious physical injury, you couldn't convict Mr Iaria under this doctrine of common purpose.

The judge then dealt with the operation of the doctrine of extended common purpose:

... the doctrine of extended common purpose says [that] even if it were not within the scope [of the arrangement], but the man charged foresaw that if they went ahead with the arrangement the other party might shoot to kill or inflict really serious physical injury, and instead of saying 'I don't want any part of it' went on with it knowing of that possibility, then the doctrine of extended common purpose applies and he is liable to be convicted of murder.

Say, for example, to make a practical application, if you were satisfied that there was an agreement or arrangement, however informal, between Iaria and Panozzo, to go and rip off the Franciolis and that they had agreed or understood that they would use a loaded .22 Magnum for that purpose, but there had been no agreement or understanding that they would actually shoot with intent to kill or inflict really serious physical injury, you couldn't convict under the doctrine of common purpose; but if you were satisfied that although there had been no agreement to shoot to kill or inflict really physical serious injury, Iaria had foreseen that if they went there carrying the rifle which was loaded, Panozzo might shoot to kill or inflict really serious physical injury, but Iaria notwithstanding that he knew of that possibility, instead of saying 'no, I want no part of it' went on with the arrangement, then it would be open to convict under this doctrine of extended common purpose.

And as to murder by aiding and abetting, his Honour said:

One doesn't need to establish the existence of an agreement or arrangement between co-accused in order that the doctrine apply. All that is required is that the accused be present in the sense of standing by ready to perform his part, that he be aware that the crime was being committed and that he intentionally helped the other accused to commit the crime or intentionally encouraged the other person to commit the crime by words or conduct and by his presence and behaviour. It is not enough to know that the offence is being committed in itself and it is not enough to be present in itself to constitute aiding and abetting. The accused must be present, he must know that the offence is being committed and he must intentionally help or intentionally encourage the other accused to commit it by acts or conduct and by presence or behaviour.

38 His Honour then returned to the topic of manslaughter and, after reminding the jury of what he told them concerning manslaughter by an unlawful and dangerous act, said:

There is another form of manslaughter that sometimes arises in a case where there are two accused men. Let me try to put it simply by saying this: Beyond the area of extended common purpose, if two men enter into an arrangement or understanding amounting to an agreement to go and commit an offence, let's say to [r]ob a bank, and both are present in the sense that each is there pursuant to the arrangement to play his part in the robbing of the bank, but it was not part of the arrangement to shoot to kill or to inflict really serious physical injury, and the one who stands by while the other shoots did not foresee the possibility, did not think it was possible. In those circumstances you will understand he can't be convicted under the doctrine of extended common purpose. Because he didn't foresee as a possibility that the other one might shoot to kill, it doesn't apply. But if, unexpectedly, as it were, one of the accused in the course of carrying out the bank robbery does shoot to kill or inflict really serious physical injury, the other may still be liable or guilty of manslaughter unless the possibility that the shooter would act in the way he did was so remote that it couldn't have possibly been foreseen as a possibility by the other one.

What it comes down to in this case is this: What is said by the Crown is that two men go with a loaded rifle to the farm pursuant to an agreement or arrangement to rip off the Franciolis. The Crown says that it is part of their agreement or arrangement - within the scope of their agreement or arrangement - to kill or inflict really serious physical injury, or at least it must have been foreseen as a possibility. If the Crown fails to satisfy you that it was part of the arrangement to kill or inflict really serious physical injury and fails to satisfy you that it was foreseen as a possibility, but nonetheless you are satisfied that Panozzo fired with intent to kill or inflict really serious injury, and that chance wasn't so remote that Iaria could not have suspected that it would occur, then Iaria would be liable to be convicted of manslaughter.

I try to pull that together and compare it with extended common purpose in this way. For extended common purpose it is sufficient, all other things being established, that Iaria had foreseen as a possibility that Mr Panozzo would shoot with intent to kill or inflict really serious physical injury. For manslaughter of this kind, even if he did not foresee that as a possibility, he would be liable to be convicted of manslaughter unless it was so unlikely a possibility that he couldn't have suspected that it would occur. Therefore on this branch of the case, the question, assuming all other things are established beyond reasonable doubt, is this: If these two men went with a loaded rifle to effect the rip-off, with the possibility that Panozzo would pick it up and shoot with intent to kill or inflict really serious physical injury, is it so unlikely that Iaria could not have suspected that it would occur? If the Crown doesn't satisfy you beyond reasonable doubt that it was not, then you will acquit. If, however, on the other hand, the Crown were to establish each of the other elements beyond reasonable doubt and satisfy you that it were not so unlikely that he couldn't have possibly suspected that it would occur, then it would be open to convict of manslaughter.

**39 A little later, his Honour charged the jury on the evidence and the law relating to the Crown case against the applicant, emphasising that its principal case was that it was Iaria who fired the fatal shot with the relevant intent and that the applicant was complicit in that conduct. Alternatively, his Honour told the jury, the Crown claimed that it was the applicant who fired the fatal shot with the relevant intent and Iaria was complicit in that conduct. His Honour then dealt with the four ways in which the Crown put its case of murder against the applicant, namely, common purpose, extended common purpose, aiding and abetting and, finally, on the basis that he chased and shot the deceased with the relevant intent.

40 As he had done in relation to Iaria, his Honour took the jury to the possible alternative verdict of manslaughter in relation to the applicant on the basis of commission of an unlawful and dangerous act. He told them that it would be open to them to convict him on the alternative basis of manslaughter which, his Honour said, was dealt with at page 6 of the handout. The learned trial judge added:**

That possibility would arise if and only if you were satisfied that there was a joint criminal enterprise, a common enterprise to go and rip off the Franciolis using the weapon, but you weren't satisfied that Mr Panozzo saw as a possibility that Iaria would use that loaded weapon with intent to kill or inflict really serious physical injury, but the Crown satisfied you that that possibility occurring was not so remote that Panozzo couldn't have foreseen it as a possibility. In other words, if someone goes to a meeting with a loaded firearm whilst another person comes along, is it such a remote possibility as to be incapable of being foreseen by that person that the weapon will get used for the purpose for which it is designed?

41 In this context, I turn to consider the applicant's specific complaints under ground 5.

42 The applicant's first complaint in ground 5 was that his Honour failed to direct the jury as to the meaning of 'dangerous act' in the principal definition of manslaughter on page 2 of his summary which was in the following terms:

2) THROUGH THE CONSCIOUS VOLUNTARY AND DELIBERATE PERFORMANCE;

1. The Crown must prove each of those elements BEYOND REASONABLE DOUBT.

It was said that his Honour should have defined 'dangerous' so that the jury might have understood 'the breadth of manslaughter'.

**43 It is plain, however, that the trial judge is only required to assist the jury, either by way of a relevant warning or explaining technical or other difficult terms, where the assistance is necessary to enable the jury to perform their task and to avoid the risk of a miscarriage of justice. In this case, it borders on the fanciful to suggest that, without the assistance of a definition of 'dangerous', the jury would have had difficulty in understanding that the act of pointing and discharging the .22 Magnum rifle at or in the direction of the deceased was anything but an act that was 'dangerous'. The only reasonable conclusion open to the jury on the evidence was that both accused were present at the time of the shooting and one or other of them was the shooter. As we have mentioned, his Honour told the jury 'it would be an unlawful and dangerous act to point a rifle within the vicinity of someone and pull the trigger ...'.

44 In the circumstances, we consider there is no merit in this complaint.**

45 It was also said for the applicant that his Honour's Markby direction was confusing and that, in any event, it was too narrow in scope. The elements of the Markby direction in his Honour's summary at page 6 were in the following terms:

1. AN ACCUSED ENTERS INTO AN UNDERSTANDING OR ARRANGEMENT AMOUNTING TO AN AGREEMENT WITH ANOTHER PARTY TO PLAY A PART IN THE COMMISSION OF AN OFFENCE;
2. IT IS NOT PART OF THE UNDERSTANDING OR ARRANGEMENT TO KILL OR TO INFLICT REALLY SERIOUS PHYSICAL INJURY UPON THE DECEASED AND THE ACCUSED DID NOT CONTEMPLATE THAT IT WAS A POSSIBILITY;
3. DURING THE COURSE OF CARRYING OUT THE UNDERSTANDING OR ARRANGEMENT, WHILE THE ACCUSED WAS PRESENT*, THE OTHER PARTY FORMED THE INTENTION TO KILL OR INFLICT REALLY SERIOUS INJURY ON THE DECEASED AND COMMITTED THE ACT OR ACTS WHICH KILLED THE DECEASED WITH THAT INTENTION; and
4. IN SO DOING, THE OTHER PARTY WAS NOT ACTING IN A FASHION SO COMPLETELY BEYOND THE SCOPE OF THE UNDERSTANDING OR ARRANGEMENT THAT THE ACCUSED COULD NOT HAVE SUSPECTED THAT IT WOULD OCCUR.

46 We consider that the claim that the direction in this regard was confusing is without merit. In support of his argument, the applicant's counsel pointed particularly to the following passage in his Honour's charge:

If these two men went with a loaded rifle to effect the rip-off, with the possibility that Panozzo would pick it up and shoot with intent to kill or inflict really serious physical injury, is it so unlikely that Iaria could not have suspected that it would occur? If the Crown doesn't satisfy you beyond reasonable doubt that it was not, then you will acquit. If, however, on the other hand, the Crown were to establish each of the other elements beyond reasonable doubt and satisfy you that it were not so unlikely that he couldn't have possibly suspected that it would occur, then it would be open to convict of manslaughter.

It seems to us, however, that his Honour's charge made it sufficiently apparent to the jury that if they were satisfied that Iaria was party only to the 'rip-off' and would not have suspected that the applicant would pick up the rifle and shoot the deceased with the relevant intent, then it would be open to them to convict Iaria of manslaughter. We note for completeness that, as counsel for the respondent submitted, this aspect of his Honour's direction was not regarded as confusing either by the applicant's experienced trial counsel or the prosecutor. As we have mentioned, although this is not determinative of the issue, it throws some light on whether the impugned charge was productive of a miscarriage of justice.

47 We also consider that there is no merit in the applicant's further claim that the Markby direction is too narrow. It was first said in that regard that the charge on Markby manslaughter was confined to the circumstances 'in which the principal, in the case against the applicant, has committed murder'. But we consider that the Markby manslaughter principle was sufficiently and helpfully explained to the jury by the learned trial judge by reference to the circumstances of the case and the possible findings that were open to the jury in that regard. For example, in dealing with the possibility of the jury finding the applicant guilty of Markby manslaughter, his Honour said this by way of an explanation of the circumstances in which they could make such a determination:

What is said by the Crown is that two men go with a loaded rifle to the farm pursuant to an agreement or arrangement to rip off the Franciolis. The Crown says that it is part of their agreement or arrangement - within the scope of their agreement or arrangement - to kill or inflict really serious physical injury, or at least it must have been foreseen as a possibility. If the Crown fails to satisfy you that it was part of the arrangement to kill or inflict really serious physical injury and fails to satisfy you that it was foreseen as a possibility, but nonetheless you are satisfied that Panozzo fired with intent to kill or inflict really serious injury, and that chance wasn't so remote that Iaria could not have suspected that it would occur, then Iaria would be liable to be convicted of manslaughter.

That was said in the context of his Honour's examination of the Crown case against Iaria. A little later, as has been noted, his Honour dealt with the possibility of the applicant being found guilty of manslaughter where Iaria was the shooter by reference to page 6 of the handout. What his Honour told the jury in relation to this has been set out previously but it is reproduced again for convenience:

That possibility would arise if and only if you were satisfied that there was a joint criminal enterprise, a common enterprise to go and rip off the Franciolis using the weapon, but you weren't satisfied that Mr Panozzo saw as a possibility that Iaria would use the loaded weapon with intent to kill or inflict really serious physical injury, but the Crown satisfied you that that possibility occurring was not so remote that Panozzo couldn't have foreseen it as a possibility. In other words, if someone goes to a meeting with a loaded firearm whilst another person comes along, is it such a remote possibility as to be incapable of being foreseen by that person that the weapon will get used for the purpose for which it is designed?

**48 Importantly, early in his charge, as has already been noted, the judge told the jury that a verdict of manslaughter would only be open if they were satisfied that the accused in question, although participating in what turned out to be the killing of the deceased, did not have the intention to kill or seriously injure him. In our view, his Honour was correct in confining Markby manslaughter to a case in which the jury finds that one co-accused committed murder by going completely beyond the ambit of their joint criminal enterprise while the other did not contemplate that event as a possibility though it was capable of being foreseen.

49 The second reason why it was said that the Markby manslaughter directions were too narrow was because they did not allow for a verdict of manslaughter where the applicant foresaw the possibility that Iaria might shoot the deceased, albeit without an intention to kill him or cause him serious injury. It was said that by failing so to direct the jury his Honour deprived the applicant of a chance of acquittal of murder contrary to Gillard v The Queen.[25] This claim, we think, borders on the fanciful. It is totally unrelated to the way the case was developed during the trial. Perhaps more relevantly, the notion that the applicant thought that Iaria might shoot the deceased but did so without the relevant intention seems to us to be so far fetched that a failure to direct along those lines would not have produced a material risk of a miscarriage of justice.**

**50 We now come back to the principal claim of the applicant under cover of ground 5, namely, his Honour's failure to leave manslaughter to the jury on the basis of complicity. As we have noted, it was said that this error, together with other relevant defects in the charge that are identified in grounds 5(a), (c) and (d), produced a miscarriage of justice. For reasons already given, we consider that there is nothing in grounds 5(a), (c) and (d). And we also think that in the circumstances of this case no miscarriage of justice could be said to have occurred by reason of his Honour's failure to leave manslaughter to the jury on the basis of complicity as described earlier.[26] We say this because absence of such a direction in the context of this case would not have made any difference to its outcome. As the learned trial judge said in his report to this Court, given the directions that were provided to the jury, if they found that Iaria shot the deceased without the intention to kill or inflict serious injury - an unlikely conclusion, we think, given that two shots were fired at the deceased after Iaria had tested the rifle in the presence of the applicant - they were bound to convict him of manslaughter for obvious reasons.

51 In those circumstances, given his Honour's directions, they could not have convicted the applicant of murder by complicity. In light of the jury's verdicts they must have been satisfied beyond reasonable doubt that one or other of the accused - probably Iaria - shot the deceased with the relevant intent and that the co-accused - probably the applicant - was guilty of murder by complicity. Thus, manslaughter by complicity in the sense of the deceased being killed during an agreed unlawful and dangerous act without either offender having the murderous intent had, and would have had, no part to play in the jury's determination of the matter. In any event, it is plain enough, we think, that looking at his Honour's charge on manslaughter as a whole it sufficiently dealt with all the complicity scenarios that were reasonably open to the jury on the evidence of concert or aiding and abetting which cover the shooting of the deceased by Iaria with a murderous intent pursuant either to an agreement with the applicant merely 'to rip him off' - essentially to assault him - or where the applicant aided and abetted such an act in circumstances where he had no murderous intent. It is also to be borne in mind that, although the possibility of unlawful and dangerous act manslaughter and Markby manslaughter were left to the jury, unsurprisingly these possibilities did not appeal to them.

52 Furthermore, we think it is not unimportant that counsel, who participated in vigorous debate with the learned trial judge as to how the various aspects of the case were to be put to the jury, did not raise any objection to the omission from his Honour's charge of any reference to the possibility of a finding of manslaughter based on complicity. Although, as we have said, the failure to raise an objection to this omission is not determinative of the question whether it resulted or could have resulted in a miscarriage of justice, it is nevertheless a strong pointer against that having occurred.**

Ground 6 - error in leaving to the jury the possibility that the applicant killed the deceased

**53 It was claimed under cover of ground 6 that the verdict is unsafe because his Honour erroneously left to the jury the Crown case against the applicant of murder and manslaughter on the basis that he killed the deceased given that, as we have already mentioned, the Crown's principal case was that it was Iaria who fired the fatal shot. It was argued that his Honour should have told the jury that it was not open for them to find that the applicant fired the fatal shot and his Honour's failure to do so effectively invited them to follow a false line of reasoning and deflected them from their consideration of the real issues in the case.

54 The learned trial judge sought to persuade the Crown that it would have been far simpler if the Crown had run the case on the basis that Iaria fired the fatal shot. But the difficulty inherent in the complaint under this ground is that Iaria contended that it was the applicant who fired the fatal shot, so that there was a dispute between the co-accused as to who shot the deceased. In the circumstances, it could not be said that it was not open on the evidence for the Crown to go to the jury as it did and argue that if its primary case that Iaria was the shooter was not accepted then the killer must have been the applicant. His Honour was bound to leave the matter with the jury on this alternative basis even though the principal way in which the Crown had put its case was by far the more likely scenario.

55 In the circumstances, we think that this ground must also fail. Ground 7 need not be considered because it is premised on a aggregation of errors as contemplated in R v Kotzmann[27] and no relevant errors have been shown to exist.

56 Consequently, we would dismiss the applications for leave to appeal against conviction and sentence.**

[1] [1993] HCA 63; (1993) 178 CLR 193.

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

[3] (1996) 2 VR 406, 415-416 (Brooking JA).

[4] R v Woolley (1989) 42 A Crim R 418, 423.

[5] See, eg, R v Burrows [2003] VSCA 130; (2003) 140 A Crim R 533, 537-9 (Charles JA), 542-3 (Winneke P).

[6] [2006] VSCA 86; (2006) 12 VR 401.

[7] [2006] VSCA 113; (2006) 12 VR 557.

[8] [2006] VSCA 263; (2006) 16 VR 26.

[9] R v Heyes [2006] VSCA 86; (2006) 12 VR 401, 413 (with whom Vincent JA agreed) (citations omitted).

[11] [2007] VSCA 111 [15].

[12] It was recognised in Ciantar that, as was said in R v Woolley (1989) 42 A Crim R 418, 423-424, that term is an obvious and usually convenient way of relating post-offence conduct to the material wrongdoing as opposed to some other wrongdoing: [2006] VSCA 263; (2006) 16 VR 26, 49. But as is made plain below it is not necessary to establish that the accused acted out of consciousness of guilt of a particular offence where the wrongdoing may cover a number of possible charges before the conduct can be taken into account in determining if there was an implied admission by him of the crime charged.

[13] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 40.

[18] R v Woolley (1989) 42 A Crim R 418, 423-424.

[19] [1964] HCA 23; (1964) 109 CLR 529.

[20] R v Heyes [2006] VSCA 86; (2006) 12 VR 401, 406.

[21] See para [19] above.

[22] [2005] VSCA 302; (2005) 158 A Crim R 469, 477-80.

[23] [2006] VSCA 113; (2006) 12 VR 557, 561-2.

[24] Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108, 112-13.

[25] [2003] HCA 64; (2003) 219 CLR 1.

[26] See para [34] above.

[27] [1999] VSCA 27; [1999] 2 VR 123, 157 (Batt JA).