R v Reid [2018] QCA 63

SUPREME COURT OF QUEENSLAND

CITATION: R v Reid [2018] QCA 63

PARTIES: R v REID, William Darcy (appellant)

FILE NO/S: CA No 91 of 2016 / SC No 67 of 2015

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Cairns – Date of Conviction: 1 April 2016 (Henry J)

DELIVERED ON: 6 April 2018

DELIVERED AT: Brisbane

HEARING DATE: 20 October 2017

JUDGES: Sofronoff P and Morrison JA and Jackson J

ORDER: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant gave conflicting accounts to police as to his involvement in the death of the deceased – where one account advanced by the appellant to the police was that he had stabbed and killed the deceased – where the defence case at trial was that the appellant’s girlfriend had killed the deceased by stabbing him in the back – where the evidence of the appellant’s girlfriend at trial was that the appellant had killed the deceased by stabbing him in the ribs – where autopsy evidence was consistent with the appellant’s girlfriend’s account but not the appellant’s – whether it was open for the jury to conclude beyond a reasonable doubt that the appellant killed the deceased / CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant disposed of the body of the deceased in a wild pigs’ den – where the appellant forged a document purporting to be a receipt for the sale of the deceased’s car to the appellant – where the appellant implicated his girlfriend in the destruction of his clothes and shoes – where the appellant lied to his mother, his girlfriend’s parents and police as to the whereabouts and fate of the deceased – where the appellant profited after the death of the deceased through use of the deceased’s credit cards – where the appellant instructed his girlfriend to lie – where no hypothesis consistent with manslaughter had been raised on the evidence led by either the prosecution or defence – whether it was open to the jury to conclude that the appellant’s post-offence conduct was so out of proportion to culpability for a killing in self-defence or under provocation that it could only be explained by a consciousness of guilt of murder / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – JUDGE’S SUMMING UP – where the learned trial judge explained to the jury how and why a verdict of manslaughter was an alternative to a verdict of murder – where the learned trial judge explained to the jury how circumstantial evidence can be used – where the learned sentencing judge explained to the jury that the appellant’s girlfriend had been given a reduced sentence for being an accessory after the fact to murder in exchange for giving evidence at the appellant’s trial – where the learned trial judge explained that this reduced sentence may have been an incentive for the appellant’s girlfriend to fabricate her evidence – where the learned trial judge initially directed the jury that they could have regard to the appellant’s post-offence conduct to infer an intention to kill – where the learned trial judge subsequently came to the view that the evidence was equivocal as to intention to kill and so instructed the jury that no use could be made of post-offence conduct to infer an intention to kill – whether the learned trial judge’s summing up was defective / Brooks v The Queen (2012) 36 VR 84; [2012] VSCA 197, discussed / Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46, cited / Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited / Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20, distinguished / R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied / R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, cited / R v M [1995] 1 Qd R 213; [1994] QCA 7, discussed / R v Melrose [1989] 1 Qd R 572, discussed / R v White [1998] 2 SCR 72; [1998] CanLII 789, cited / R v Woolley (1989) 42 A Crim R 418; [1989] VicSC 482, discussed / Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited / Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited

COUNSEL: J A Griffin QC, with P F Mylne and A L Marks, for the appellant (pro bono) / D L Meredith for the respondent

SOLICITORS: No appearance for the appellant / Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: On 19 September 2013, Travis Davis, a young man of 28 years, left his family home in Biloela and moved to Cairns. He packed his suitcase, a big black plastic box full of his belongings and his laptop into his ute and drove to his new home. Less than a month later he was dead. The Crown charged the appellant with his murder and a jury found him guilty.

The Crown case rested largely upon the evidence of Austasia Kapteyn. She had met the appellant when she was in Grade 11 at school. He was her first boyfriend.

In August 2013, they began to live together on a property at Mona Mona owned by Austasia’s aunt. Austasia and the appellant were then 19.

Austasia gave the following evidence. Shortly after moving onto the property, the couple met Travis Davis at a veterinarian’s surgery. He had come in his black Hilux utility to the local vet in Kuranda, a town near Mona Mona, bringing his puppy, Dexter. The appellant and Austasia did not own a car. Travis agreed to help them move some of Austasia’s belongings from her parents’ place to their new home at Mona Mona. While he was at their home, Travis unloaded a few of his own possessions, including a black box, and, when he left that night he left these things behind as well as his puppy, Dexter. He returned the following night, but after a short stay he left again.

He returned early one morning in his ute. Austasia and the appellant heard him arrive. Austasia was sick and remained in bed. The appellant got up and dressed. He put on a T‑shirt and jeans and a pair of jogging shoes. A few weeks earlier the appellant had bought a knife and scabbard. It was common ground at the trial that this knife was a single edged weapon with a serrated edge on the non-sharpened side of the blade. The blade was 15 centimetres long. It came equipped with a leather scabbard. After he had purchased it, the appellant habitually carried this knife on his belt. He was seen by a witness, Mr Diamond, carrying it in this fashion at Mona Mona and also in the streets of Kuranda itself in public. Another witness, Mr Brim, saw him sporting it at the Mona Mona property. Mr Collins, a garbage collector, and Mr Haynes, another garbage collector, both saw him at the Mona Mona property carrying the knife on his belt.

The appellant went out to greet Travis wearing this knife. The appellant and Travis had an amicable conversation that Austasia could hear and the appellant then told her that they were going for a drive together up to Pineapple Hill nearby. They were gone for some time and then returned.

The appellant told Austasia that he was going to show Travis around the Mona Mona property. They were gone for most of the day and returned in the afternoon. Austasia remained at home doing some household chores.

She too had a dog and, in the afternoon, her dog began barking. She quietened him and could then hear male voices in the distance. She called out but received no reply. She could hear laughter and indistinct conversation. In evidence she said:

“I remember hearing, like, this – this sort of thump and – and – yeah – yelling after the – the laughter and that. Yeah. After the laughter and that. When I was walking back I heard this thump.”

She could identify the appellant’s and Travis’s voices shouting at each other. She heard the appellant say, “Are you fucking me around?” She heard Travis’s voice saying, “No, I’m not.” She then heard a second thump. She became frightened.

She had walked towards the voices but had then stopped behind a tree. She saw the appellant crouching in the bushes with blood on him and twirling his knife between his two hands. She walked back to the home in shock.

The appellant appeared. He had no shirt on. He held his knife in his left hand. Austasia said that there was “blood all over him”. She asked the appellant what had happened and where was Travis. He replied that he had left him lying in the bush. Austasia began to cry and remembers seeing the appellant crying as well. She went into the kitchen and saw the appellant searching through Travis’s possessions. He then walked back into the bush in the direction from which he had come earlier. She heard him shouting “Where’s the fucking dope? If it’s not there, I’ll go back and do you properly.”

The appellant returned to the dwelling and again began to search through Travis’s possessions. He then left these things and returned into the area where Austasia had seen him earlier. She heard another thump.

Shortly afterwards the appellant returned and Austasia saw that he had “more blood on him, thicker”.

The appellant took off his jeans and his shoes and threw them in the fire that was burning in the fireplace. He took a fuel canister and put fuel into the fire and, according to Austasia, “It just went – went up like that.” The appellant told her that if she was approached by police that she should tell them that he had taken Travis down to Cairns Airport. The appellant took bleach from the kitchen and went from the kitchen and bathed himself, scrubbing himself with bleach. He cleaned the knife with the bleach also.

Austasia asked him what had happened and he refused to tell her. He then went through Travis’s belongings again, collecting papers and other materials. He told Austasia that he was getting rid of evidence. She asked him again what had happened. In her evidence she said:

“I just remember him using me like a – a – a dummy, and he said that he had – he – he said that he had hit Travis over the back of the head with a – a log, and that he had apparently kneed him to – to the face and broke his jaw and made, like a slicing motion across my neck and apparently he – he said also that he had stabbed him to – to the rib.”

Sometime later the appellant took a pen out of Austasia’s bag and began to write on a piece of paper. It was common ground at the trial that this was a forged receipt he had fabricated evidencing the sale by Travis to the appellant of his ute. The receipt was in the following terms:

“$1500

I travis davis

Sell my 2007

Hilux to William

Reid on 15/10/13

(indecipherable signature)

(indecipherable signature)”

The appellant then attempted to delete materials from Travis’s laptop, apparently without success. He burnt several of Travis’s papers. He told Austasia to tell the police, if asked, that Travis had given her his laptop.

On the next morning, Austasia awoke alone. The appellant had gone somewhere. He came back saying he was looking for a rope. He told her he was going to take Travis’s body down to a wild pigs’ den. He said he would “leave him there for the animals”.

On that day or the day after, the appellant and Austasia drove to Kuranda in Travis’s car. They visited Austasia’s parents. The appellant told Mr Kapteyn that he had bought the ute. They then went into Kuranda and, as was common ground at the trial, used Travis’s ANZ credit card seven times. On the next day, the appellant used it again five times. On the following two days the appellant attempted unsuccessfully to use another credit card of Travis’s in Kuranda and Mareeba.

Driving back from Austasia’s parents’ home, the appellant lost control of the ute and damaged the car. It was un-driveable. Sometime later the appellant loaded the car onto a trailer and took it to Cairns where he sold it for $1,500. This too was common ground.

The jury obviously accepted the substance of Austasia’s evidence. Her evidence proved that the appellant had admitted the killing to her. Her evidence of what she had seen and heard was circumstantial evidence that supported the truth of that admission.

The Crown also relied upon four other categories of evidence to support the truth of Austasia’s testimony.

Travis’s mother, Sue-Anne Davis, had reported her son missing on 12 November 2013. Police found the body on the Mona Mona property in late November. It was in an advanced state of decomposition and there was evidence of animal interference. There were several holes in the body but, because of its state of decomposition, it was only possible to identify two of these as likely caused by injuries rather by than the effect of decomposition. One of these holes was located over the ribcage. The seventh rib was fractured. The break pointed inwards, suggesting that force had been applied from outside the body. The rib also showed what was called a “defect” that was consistent with the rib having been cut by a blade. The expert evidence showed that this cut was consistent with having been made by a knife of the kind owned by the appellant. The knife itself was never located but a photo of a replica was tendered. It was likely that the knife penetrated an internal organ.

The expert acknowledged in cross-examination that this injury was also consistent with having been caused by the body falling from a height onto something shaped like a long sharp knife. However, there was no evidence whatsoever to support this theory and it can be put to one side.

Travis’s shirt contained holes. It had lain in the weather and had deteriorated. However, expert evidence was led that two of these holes were consistent with being cuts in the fabric.

Consequently, Travis’s shirt and the exterior of his body had indications consistent with his having been stabbed at least once or twice. Internal examination was capable of proving that he had been stabbed in the torso to an extent that could have killed him.

Although the knife itself had disappeared, the scabbard for the knife had been found inside the dwelling at Mona Mona. DNA testing established two significant matters. First, the appellant’s and Travis’s DNA were found on the exterior of the scabbard. Secondly, Travis’s DNA was found on the inside of the scabbard. Austasia gave evidence that the appellant’s knuckles had been grazed when he returned to the dwelling with blood on the knife and on his jeans. A witness, Ms Brim, saw Austasia and the appellant in Kuranda shortly after these events. She noticed that the appellant had a white T-shirt around one hand and that his other hand was swollen. He told her that he had had a fight with two men.

There was therefore evidence, capable of acceptance by the jury, that Travis had been stabbed to death and that the weapon the killer had used was the appellant’s knife. There was no evidence, on Austasia’s evidence, that Travis had been armed when he was killed.

After Mrs Davis had reported her son missing, police began searching for him. On 19 November the appellant’s mother, Roxanne Brim was watching the news on television. There was a report about Travis’s disappearance. The report showed a photo of Travis and another of his ute. Ms Brim had met Travis in company with her son. Later, she had seen her son in possession of the ute. He told her that he had dropped Travis off at Cairns Airport and had bought his ute from him for $1,500. She knew her son had no money and asked how he would pay. He told her that he had agreed to pay $100 a fortnight into Travis’s bank account by bank transfer. When she saw the news report, she told the appellant that he might have been one of the last people to see Travis before his disappearance and he should call Crime Stoppers. At his mother’s request, he did so from the phone at her home.

Naturally, this led police to interview him. The first interview was an informal one at the appellant’s mother’s house. Ms Brim was present. Senior Constable Hogan and Constable McGrath recorded the interview. The appellant said that Travis had said that he “had family problems” and had to go home. He said:

“And I said, ‘Yeah, alright. I’ll buy your ute’, and then we took him down to Cairns and on the way down to Cairns he goes, ‘Look, I can’t take my dog. Can you look after it?’ so I said, ‘Yeah’, and now the dog’s out – cos I can’t – I can’t afford it.”

He said that he had driven into the airport, obtained a ticket from the boom gate at the airport vehicular entrance and dropped Travis off at the departure area. The two police officers invited the appellant to come to Kuranda Police Station to obtain a statement and he agreed to do that. At the police station the appellant confirmed his version of events in a written statement.

By 23 November 2013, police had found that credit cards belonging to Travis had been used in Kuranda. They had obtained CCTV recordings of transactions at a Kuranda supermarket at which one of the cards had been used. The appellant could be seen undertaking one such transaction. Police had also obtained CCTV footage from cameras on the road leading to the airport. They examined the recordings of traffic for a period of four hours, within which the appellant must have driven the airport if his story was true. The ute was black with 20 inch magnesium wheels. This distinctive car never appeared in the recording.

On 23 November, police executed a search warrant at the Mona Mona property. They found some of Travis’s possessions there including his red suitcase.

As a result of these enquiries they once again invited the appellant to the police station for an interview. During the carefully planned interview that followed, the appellant’s story quickly began to fall apart. He repeated the falsehood that Travis had sold him the car, had himself written out the receipt and that the appellant had dropped him off at the airport. He emphasised that Travis had taken his red suitcase with him:

“REID: I helped him get it off the back.

SGT HALL: Yeah. The suitcase?

REID: I – I got out and I shook his hand, you know what I mean?

SGT HALL: Yeah.

REID: I pulled it off and it was bloody heavy.”

He told police that on the drive to Cairns Travis had asked the appellant to keep his dog as he could not take him along. The appellant said, other than the ute and dog, Travis left nothing behind. After having committed himself once more to this false story, Sergeant Hall began the process of breaking it down:

“SGT HALL: Mate, we’ve been to the airport and spoke to all the airlines, and no-one’s got any record of him travelling.

REID: Well, I don’t know, mate. All I’m saying is; when I dropped him off that was the last time I ever saw him.”

This process then continued:

“SGT HALL: That’s why we’re asking, just to see what you know, mate. Alright. And – alright. One of the other things; we noticed – we’ve had a look at, um, ah, his bank transactions, and it looked like his bank account was being used in Kuranda on the 19th and 20th of October, which is four or five days after - -

REID: After I bought the ute.

SGT HALL: -- you said you – yeah.

REID: And I dropped down in Cairns, mate. I don’t know. I don’t know nothing about that.

SGT HALL: Mate, it was used at, um – so did you see him around Kuranda after that?

REID: No, mate. I’m quite sure if he was in Kuranda he would have come and seen me.

…

SGT HALL: So can you give me an explanation as to why, if you’ve dropped him on the 15th, his bank records indicate he is still spending money in town on the 19th - -

REID: I don’t know.

SGT HALL: - - and 20th?

REID: I couldn’t tell you.”

Sergeant Hall then informed the appellant that they had viewed the video surveillance cameras on the approach to the airport and the ute never appeared during the relevant time. The appellant was unable to explain this phenomenon.

In the course of the interview, Sergeant Hall established that the appellant had a shirt with a Holden logo prominently on it and had worn it. He also established that the appellant wore a bracelet which, the appellant asserted “has never ever come off my wrist in the last two years”.

Sergeant Hall then changed the subject to the use of Travis’s credit cards. The appellant denied ever having used them. Indeed, he denied ever having used the Pay Wave facility:

“Oh, I’ve never used that. I don’t even know the PIN for that card.”

It was then explained to him that the Kuranda supermarket recorded events at the check-out area on CCTV. Sergeant Hall told the appellant that there was a recording of him, in company with Austasia, at the supermarket wearing the Holden shirt and the bracelet on his wrist. The appellant continued to deny having used the cards and said the person in the video could not be him.

Sergeant Hall then arrested the appellant.

At about lunch time on the following day, 24 November, Senior Constable Hogan and Senior Constable McGrath interviewed the appellant once more.

It seems that initially the appellant was going to maintain his fiction that he had left Travis at the airport. Senior Constable Hogan had repeated that he was investigating a missing person, Travis Davis. The appellant responded:

“I know what I [sic] said on the news, I called Crime Stoppers.”

However, almost immediately Senior Constable Hogan revealed a startling new fact:

“Um, a search has been conducted this morning and, ah, the body of a deceased male has been located close to the area you’ve described as your camp. Okay. I think, ah, it’s fair to say from a physical description and some personal effects located nearby that that male is Travis Davis, and he’s, ah - -

REID: It wasn’t supposed to happen like that.”

The appellant then offered a new version of events:

“REID: He come out, man, he was fucking losing it. I hit him, mate. I fucking hit him once out the front of my fucking house, mate, and that was the last of him. He fucking just dropped, man. He fucking dropped. I screamed for Austasia telling her to stay inside. He come out, man. He was cracking up about fucking money. He needed money. Fucking cracking up. He pulled the metal baseball bat out of his car, which is at – at Bart’s house now, man. I cracked him. I hit him as hard as I fucking could, and that was the end of him, mate. He had the baseball in his hand. I hit him as hard as I fucking could. He just didn’t get up and I didn’t know what to do. So I fucking wrote the receipt. I fucking wrote the receipt. I didn’t know what to fucking do. You know, she’s – it’s gone from fucking bad to worse.

SCON HOGAN: Mate, just try not to pace around too much, mate. I understand you’ve got a lot going through your head.

REID: It wasn’t supposed to be like this, man. Like I said to youse, he was going to come out, he was going to stay for a little while. He needed somewhere to stay. 8 o’clock in the morning he wakes me up fucking ranting and raving how he needs money and shit, then threatening me, so I cracked the cunt as hard as I fucking can, but he doesn’t get back up. Can I please have a cigarette, please?

SCON HOGAN: Well, we can’t in here, and I haven’t got any, but, ah, we’ll make some arrangements for you as soon as we can. There’s a few things we need to cover for this- -

REID: Look, mate, I’m guilty.

SCON HOGAN: Yep.

REID: Austasia didn’t do shit, mate. She’s just covering my arse, man.”

He admitted dumping Travis’s corpse “down the fucking thing”, that is to say the wild pigs’ den:

“SCON HOGAN: Did you know that he was dead?

REID: I had the feeling, man. He wouldn’t get up. He wasn’t breathing. I didn’t know what to do.

SCON HOGAN: Did you check his pulse or anything?

REID: I didn’t know what to do, man.”

The appellant admitted instructing Austasia to support his lies. He admitted using or attempting to use Travis’s credit cards. He did not refer at all to his knife.

Towards the end of the interview, Senior Constable McGrath asked:

“And, sorry, you – just one last thing. Um, you know what a post-mortem is, an autopsy? You know – you know what an autopsy is?

REID: Yeah, I’ve seen it on CSI or whatever it is.

SCON McGRATH: Seen it on TV. You know what it is. What is it?

REID: It’s where they go over the body or something.

SCON McGRATH: Yep, a – a doctor.

REID: Mmm.

SCON McGRATH: Yep. Um, and the purpose of that generally is to identify a cause of death. Do you know that?

REID: Mmm.

SCON McGRATH: Okay. So you do know that.”

This gentle prompt to be candid about the cause of death did not cause the appellant to reconsider his statement.

The appellant agreed to accompany police to the scene to describe what happened. While the appellant was engaged in that way, police interviewed Austasia once more. She had given two previous interviews during which she had stuck to the falsehoods she had been instructed to put forward. On this occasion police told her that the appellant was in custody and had taken responsibility for Travis’s death. With that new information, she changed her story and described what had happened in the terms set out earlier.

In the meantime, the appellant was at the scene describing to police his latest version of Travis’s death:

“REID: Um, yeah. My missus, Austasia Kapteyn yelled out and told us to shut the fuck up, he was standing right there. She told us to shut the fuck up and he turned around and he told her to shut up and I hit him.

SCON HOGAN: Alright.

REID: And he went legless right there.”

At the end of his description, Senior Constable Hogan asked:

“Is there anything else you want to say before we finalise this video?

REID: Nuh.

SCON HOGAN: No.

REID: Apart from Austasia had nothing to do with it. She was just trying to keep me out of trouble.

SCON HOGAN: Okay. Did Austasia at any stage go up there to where Travis had been - -

REID: She doesn’t know nothing about it, mate.

SCON HOGAN: No? Okay.

REID: Doesn’t even know where he is.”

While at the scene the appellant admitted that many of the items found there had belonged to Travis.

On the evening of the same day Senior Constable Hogan charged the appellant with Travis’s murder. He also informed the appellant that police had been speaking to Austasia that afternoon and that she had said that he, the appellant, had walked off with Travis, that he had a knife in his possession and that she has not seen the knife since. The appellant responded:

“I haven’t had a knife for a long time now, mate.”

A little later he said:

“I won’t worry about that because I don’t have a knife, I haven’t for a long time.”

The appellant was placed on remand at Lotus Glen Prison. At his own request he was reinterviewed on 4 December 2013. He was attended by his solicitor. He now offered yet another version of events. By this time the autopsy had taken place and had revealed the nature of the injuries suffered by Travis. The appellant’s new version was as follows:

“REID: He was standing about this far away smoking on his smoke, going like this. You know wave – waving his baseball bat and smoking his smoke, “You think you’re so good, don’t you? You think you’re so good.” Right? That’s exactly what he was saying. Now Austasia yelled out from in the room, “You two pair of cunts shut the fuck up and show some respect”. Now he’s turned around and yelled at her. I’m still in my chair. I’ve smacked him. I’ve hit him as hard as I can. Me and him had a bit of a scuffle, he’s grabbed me by the throat. I had a scratch down there. He’s grabbed me by the throat and next thing I hear’s a thud. My knife’s in his back, he goes like that and goes, “Ah”, he drops – he drops to the ground and asked me for help. His eyes go black. Austasia’s standing behind him. So I pick him up and I carry him into the bush and then Austasia follows me. She goes, “Oh, can’t you take him any further?” So I go back and you know where the mango tree is?”

He now accused her of burning the clothes and Travis’s paperwork to get rid of the evidence.

The appellant volunteered to other facts which are of great significance for this appeal. He was asked why he had changed his mind and decided to offer “this version that involves a knife”. He responded:

“Cause I was gonna take the rap for it all, leave the knife out of it because I don’t know where the knife is. After I got out of the shower, cause I’ve thrown it in the ground near the mango tree when I got out of the shower the knife was gone. I have no idea where it is and without that I can’t prove that I didn’t do it.”

Sergeant Hall pursued this subject a little later:

SERGEANT HALL: Right. And before you saw the knife in Travis’s back when was the last time you saw the knife?

REID: ‘Cause I always keep it hanging up, I always have it hanging on my - the corner of my bed.

SERGEANT HALL: In what? Or on what?

REID: In a – it come with a knife um holster. It always hangs up there.

SERGEANT HALL: So where is that holster now?

REID: That holster should be at Mona Mona. What’s got me – what’s got me is I threw it in Travis’s box.

SERGEANT HALL: What – what –

REID: Now –

SERGEANT HALL: What did you throw in his box?

REID: The knife holster.

SERGEANT HALL: Oh, did ya? Why is that?

REID: Because I couldn’t find my knife I was skitzing out trying to find the knife and I couldn’t find it but that knife holster the last time I saw it was in that black box of Travis’s. Now the detective’s out there asking me whose box is this and what are all these cords, the knife holster wasn’t in there anymore but on the records of what they collected –

SERGEANT HALL: Mmm

REID: – there was no knife holster.

In fact police had found the scabbard and, as has already been explained, traces of Travis’s DNA had been found inside the scabbard.

As is obvious, on this latest of the appellant’s versions of what had happened, Austasia had used the knife to stab Travis and the knife had then disappeared. On this version there was no explanation for the presence of Travis’s DNA inside the scabbard. Indeed, in a subsequent interview the appellant was asked:

SENIOR SERGEANT DEVINE: So the knife was never put back into the pouch?

REID: No. The last time I saw it I threw it into the ground next to the mango tree.

His latest version also raised other problems for the appellant. This newest story had Austasia stabbing Travis once in the area of the left shoulder blade. According to the appellant the knife had been driven in to the hilt.

By this time, Senior Constable Hogan had the results of the autopsy to hand. He began his line of questioning:

SCON HOGAN: This injury is found on the 7th rib, ah, about 11 millimetres from the um from the bell end which puts it on about halfway around the – the back to the side, the left-hand side of the body further down so around this area. So if you’ve got any explanation as to how that injury occurred?

REID: Nuh.

SCON HOGAN: Mmm-hmm. And you can’t describe to me how any other injuries happened?

REID: Nuh.

SCON HOGAN: Okay. Any comments you want to make about that?

REID: Nuh. I – that’s got me baffled.

REID: He flaked on the ground when he got stabbed in the shoulder blade.”

Having regard to the injury found on the 7th rib, which the jury was entitled to conclude had been inflicted by Travis’s killer, this third story could not be true. There was no autopsy evidence to support it but there was autopsy evidence to contradict it.

The cross-examination by the appellant’s counsel of Austasia was consistent with this third version. It was put to her that the appellant had not said to Travis, “I’ll come back and do you properly.” It was put to her that the appellant had not emerged from the bush stained with blood and that he had not demonstrated on her body how he had attacked Travis. It was put to her that she herself had “stabbed Travis in the back between the shoulder blades”. It may be observed that this was not entirely consistent even with the appellant’s last version as he had given it to police. It was put to her that she had picked up the knife and hidden it. On this version, too, the DNA in the scabbard was unexplained. It was put to her that she had destroyed the appellant’s clothes and shoes and Travis’s papers by burning. Otherwise, she was cross-examined as to matters of detail, some inconsistencies and her willingness to lie to police in support of the appellant when she gave her first two statements, a matter that affected the appellant’s credibility just as much as hers.

It is significant for the purposes of this appeal to observe that no part of the appellant’s defence involved any claim that he had stabbed Travis to defend himself or that he had done so under provocation. Nor was there any suggestion raised as part of the defence case that the appellant had killed Travis unintentionally nor did the Crown lead any evidence that was capable of raising an unintentional killing as a possibility. Nevertheless, out of an abundance of tenderness for the appellant’s interests, Henry J directed the jury that they ought to consider whether Travis had attacked or insulted the appellant, rather in the manner described by the appellant himself to police in his second version, and whether the appellant had stabbed Travis as a reaction. This required the jury to consider self-defence and provocation. However, this was not actually a hypothesis advanced by either the defence or the prosecution. It was a hypothesis that involved taking part of the appellant’s version and part of Austasia’s evidence and combining them to put forward a version that nobody had put forward. The jury correctly rejected it.

Consequently, having confined himself at the trial to a theory according to which it was Austasia who had intentionally killed Travis by driving the knife into his back to the hilt, the appellant’s forensic choice left him in a predicament if the jury accepted Austasia’s evidence as true. On her evidence, the appellant had killed Travis by stabbing him between the ribs with a long-bladed, sharp pointed hunting knife after, moments earlier, threatening to kill him. This was not a case like Pemble v The Queen¹ in which there was material upon which a jury could have found provocation or a killing without an accompanying intention to kill. On Austasia’s evidence, the killing was a murder. In the absence of an alternative hypothesis that took into account what she said she had seen and heard, a man who stabs another in the area of the 7th rib with the knife that was used in this case (on either version) can be taken to have intended to kill his victim. Absent a defence being offered, or a reasonable factual hypothesis arising on the evidence consistent with a lack of intention to kill or to cause grievous bodily harm despite using such a weapon, it was open to the jury to conclude that the element of intention had been proved. The contrary has not been submitted at the trial or on appeal on behalf of the appellant and the reason for that is evident from the content of the two opposing versions that alone were put in issue by the parties.

The appellant points out that the learned trial judge had initially directed the jury that they could have regard to the appellant’s post-offence conduct to infer that he had an intention to kill but had later directed the jury that they could not do so because the evidence was equivocal. The appellant submits that that second direction was inadequate to overcome the effect of the first direction and resulted in a miscarriage of justice.

This submission should be rejected for two reasons. First, in an elaborate, comprehensive and careful summing up, the learned trial judge explained to the jury the elements of the offences that they had to consider. He explained how a verdict of manslaughter was an alternative to a verdict of murder and why that was so. He explained the nature and significance of circumstantial evidence and, at great length, referred to the evidence of the appellant’s possession of the knife, his injured fists, the appellant’s use of the credit cards (which was admitted at the trial), the inferences which could be drawn from the injured rib and the damage to the T‑shirt as well as the significance of the DNA evidence. In respect of Austasia’s evidence he gave a Robinson² direction. He explained that Austasia had been charged and had pleaded guilty to being an accessory after the fact to murder. She had promised to give evidence for the prosecution and had thereby secured a reduced sentence. His Honour explained that that might have been an incentive for her to fabricate her evidence. He also pointed out that on her own admission she was herself involved in the crime and had an incentive, for that reason as well, to implicate another to reduce her own culpability. He pointed to the inconsistent version she had given to the police and that her last account included many fresh details that she had not revealed before.

The summing up began in the late afternoon of 30 March 2016. Early in the summing up, while giving the jury an overview of the case as a whole, the learned trial judge said:

“So the prosecution asks you in relation to her evidence to draw an inference from what she saw, that the accused unlawfully killed the deceased and, what is more, did so intending to kill; that is, that he murdered the deceased. It does not ask you to draw that inference based on her testimony alone.

It also asks you to consider other features of the case: the lies told in the aftermath, and some of the post-offence cover-up type conduct in the aftermath by the accused, the forensic evidence, the blood on the scabbard, the DNA on the scabbard consistent with both the accused’s and the deceased’s. The presence of that rib injury was not just a fracture, but the penetration affected, it seems, by what has to have been – at least particularly on the evidence of the second pathologist – a sharpened implement. I do not suggest that is an exhaustive list. But the prosecution case really invites you to combine all of those pieces of evidence and look at the overall picture and ask yourself, putting all those facts together, “Am I prepared to infer, even though I don’t actually know in terms of anyone who actually witnessed, but down there in the bush the accused murdered the deceased?”

The appellant now submits that the prosecutor’s submission that the post-offence conduct could be used as a basis to infer intention to kill was wrong and that Henry J should have said so. It is necessary to consider the course of the summing up in a little detail.

On the afternoon of 31 March, the second day of the summing up, Henry J gave detailed directions about how the jury could use any findings it made that the defendant had told lies:

“Before you can use this evidence of these four lies you must be satisfied of a number of matters and unless you’re satisfied of all of them you cannot use the evidence against the defendant. Firstly, in respect of each alleged untruth you must be satisfied the defendant has told a deliberate untruth. There is a difference between the mere rejection of a person’s account of events and a finding that the person has lied. In many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The defendant may have been confused or there may be other reasons which would prevent you from finding that he’s deliberately told an untruth.

Secondly, you must be satisfied that the lie is concerned with some circumstance or event connected with the offence. You can only use a lie against the defendant if you’re satisfied, having regard to those circumstances and events, that reveals a knowledge of the offence or some aspect of it. Here it is in effect said that each of these lies were calculated at deceiving the outside world about the true fate of the deceased; that is, that the deceased had been killed by him.

Thirdly, you must be satisfied that the lie was told because the defendant knew that the truth of the matter would implicate him in the commission of the offence and not of some lesser offence. The defendant must be lying because he is conscious that the truth could convict him. There may be reasons for the lie apart from a realisation of guilt. People sometimes have an innocent explanation for lying. I’ve already mentioned, there’s the prospect of attempting to bolster a true defence, bolster a just cause, or lying out of shame or out of a wish to conceal embarrassing or disgraceful behaviour. It might be told out of panic or confusion or just to escape an unjust accusation, or to protect some other person or to avoid a consequence extraneous to the offence.

If you accept a reason of this kind is the explanation for the lie then you cannot use it against the defendant. You can only use it against the defendant if you are satisfied that he lied out of a realisation that the truth would implicate him in the offence.”

His Honour gave similar directions with respect to the appellant’s actions in burning the deceased’s clothes and papers (if the jury so found), forging the receipt for the vehicle and leaving the body in the bush (which were admitted) and his instructions to Austasia to tell lies.

His Honour then directed the jury, in emphatic terms, that the evidence of lies and other post-offence conduct could be used by the jury to conclude that the appellant had unlawfully killed Travis but not that he had held the relevant intention at the time so as to render him guilty of murder. On the first day of summing up his Honour had given his directions about intent as an element of the charge. No complaint has been made about those directions. In connection with the use of post-offence conduct, Henry J now explained:

“Even to the extent they suggest that he wanted to cover up the true cause of death, that same desire would apply whether he was covering up a murder or a manslaughter. Whether it be a manslaughter involving a knife or a murder involving a knife or manslaughter involving some other cause of death, conduct such as leaving the body in the bush and claiming the death was the product of just one punch really do not assist you ultimately in distinguishing between murder and manslaughter.

So I direct you could not find the accused held the relevant intent to kill or do grievous bodily harm based on the evidence of, if you find it to be so, his consciousness of guilt exhibited by lies or post-offence conduct. You may only use those categories of evidence, the lies and post-offence conduct, in considering whether he’s guilty of manslaughter.

There is, of course, other evidence such most obviously as, depending on the view you form of the facts, the apparent potential use of the knife which you can, of course, have regard to in considering the fourth element, just as you could have regard to some of what Kapteyn said she heard and what was said in the aftermath by the accused on her account.

I merely make it plain you cannot use that consciousness of guilt evidence, the four lies, the four post-offence conduct behaviours, in considering the question of whether he intended to kill or do grievous bodily harm has been proved beyond a reasonable doubt. You can most certainly use it in considering whether or not he’s guilty of manslaughter, that is, whether he’s guilty of an unlawful killing, but it really doesn’t sensibly ultimately in any potentially reliable way allow you to distinguish between the two.

So that’s its limitation on its use. As I say, there is, of course, other evidence available to you depending on the view you take of it which may cause you to conclude the relevant mental element has been proved. It’s entirely a matter for you whether it has been or not, based on the whole of the evidence, of course.”

The first complaint the appellant makes about these directions is that his Honour’s statement that the lies and post-offence conduct “cannot logically do much to assist you in distinguishing between murder and manslaughter” would not have helped the jury to determine how it could use that evidence. This argument should be rejected. His Honour had explained how the evidence could not be used to distinguish between the two offences. As to the use of the evidence to prove the appellant’s guilt of, at least, manslaughter, the directions quoted above at [72] were directed to that very point and no complaint has been made about their adequacy nor could any such complaint have been made.

Next, the appellant complains that after the jury had retired his Honour informed the prosecutor by way of explanation that he had changed his view about the significance of the post offence conduct during the course of considering his summing up. By the time he came to direct the jury in the afternoon of the second day of summing up in the terms that I have quoted, his Honour had reached the view that the evidence of post-offence conduct was equivocal as to intention. The appellant does not complain about the direction that was actually given. The appellant complains, rather, that “His Honour did not however advise the jury of his change” and did not tell the jury to ignore what the prosecutor had said.

The overriding requirement is that a jury be properly directed on the law. If there is a risk that a jury could be misled because of submissions made by either counsel, it would be incumbent upon a judge to ensure that adequate directions were given to overcome the effect of such misleading submissions. The actual terms of the directions that should be given to that end are a matter of judgment depending upon the circumstances of the case at hand. The directions that were given in this case, in my respectful opinion, were adequate and appropriate to ensure that the jury was left in no doubt about the limited scope of the significance of the lies and post-offence conduct. Indeed, they could hardly have been more clear or more emphatic. I would reject that argument that the jury might have been left in some doubt or confusion.

The second reason why this argument should be rejected is that, in any event, in my respectful opinion these directions were too favourable to the appellant. The offence charged was murder. The prosecution case depended entirely upon the jury’s acceptance of the evidence of Austasia. Her evidence was the mainstay that supported the case of an intentional killing by the appellant alone. Once the jury accepted her evidence, as it must have done to have convicted, nothing was left upon which a verdict of manslaughter could have been returned. Nor did the appellant’s counsel make any submissions to that effect. As would be expected in the particular circumstances of this case, defence counsel’s submissions concentrated almost entirely upon the reasons why the jury should reject the evidence of Austasia. He then devoted some time to the reasons why the jury should accept the final version of facts the appellant gave to police or why, at a minimum, the evidence constituted by the appellant’s statements to police should at least raise a reasonable doubt about his guilt. The substance of those latter submissions was that all of the evidence, when looked at as a whole, was incapable of ruling out the possibility that Austasia was the killer.

However, if the jury was not prepared to conclude that Austasia had killed Travis, then it was submitted on the appellant’s behalf that there was still a myriad of possibilities as to how Travis died. However, even that submission was premised upon the jury’s rejection of Austasia’s evidence. Counsel submitted:

“Those possibilities exist because of the unsatisfactory nature of Austasia’s evidence. If her evidence is put to one side, then there’s no satisfactory explanation as to circumstances in which Travis died, how he died, even where he died…”

That submission may have been correct but the difficulty was, as the submission recognised, that if the jury accepted Austasia’s evidence, a verdict of guilty of murder was inevitable.

Much confusion about the significance of evidence of post-offence conduct by an accused can arise by restricting one’s consideration of the issue to the broad question whether or not the evidence unequivocally “demonstrates consciousness of guilt of the charged offence”.

In some cases, it is true that no more narrow a distinction need be drawn. So, in R v M ³ the appellant had been charged with rape. It was open for the jury to convict him of the lesser offence of indecent dealing. Davies JA said that the trial judge should have drawn the jury’s attention to the difficulty of inferring from evidence of the appellant’s flight a consciousness of anything more than guilt of indecent dealing.⁴ The evidence was probative of guilt of some offence. R v Melrose⁵ was a case in which the appellant’s flight was made in circumstances in which he had been charged with the offence the subject of the appeal and also another separate and unrelated offence that was not the subject of the trial. He had also been assaulted while in prison on remand. Connolly J considered at length the significance of these matters as possible plausible motives to flee as alternatives to fear of conviction of the charged offence as a motive to flee.

However, evidence of post-offence conduct is often led to prove a single fact in issue rather than the commission of a distinct crime consisting of several elements. This is so because after committing a crime a guilty person is not usually conscious, for example, of having committed an offence against s 302 of the Criminal Code as distinct from an offence against s 303 of the Criminal Code and does not then set about to behave accordingly. Rather, such a person is conscious that he or she has, for example, stabbed the deceased intending to kill and has succeeded in so doing. The guilty acts are the stabbing, the ensuing death and the killer’s consciousness of having done so intending to kill. Consequently, evidence of post-offence conduct may be led to prove one or more, or all, of those facts. Whether the conduct is particularly relevant to one such fact or element may depend upon the weight of proof of each element that must be established as well as upon the forensic choices made by the parties about the elements and facts that they wish to put in issue.

In R v Ciantar⁶ the appellant had been convicted of culpable driving. The appellant did not put in issue that he had been the driver of the car that had hit and killed a pedestrian. The particulars of his culpability were that, at the time of the collision, the appellant had been under the influence of alcohol to a degree as to render him incapable of proper control of his car. This was the fact put in issue by the parties. The appellant had been found, sometime after the collision, to have a high concentration of alcohol in his blood.

Two categories of evidence of post-offence conduct were led at the trial. First, there was evidence that the appellant had fled the scene of the collision. He had, in fact, driven to his father’s house after which he presented himself to police. The trial judge directed the jury that, before they could use the fact of flight as evidence of guilt, they had to exclude the possibility that the appellant had fled by reason of panic rather than consciousness of his guilt of the offence charged. Second, the appellant sought to explain the high alcohol concentration found in his blood by saying that, upon his arrival at his father’s house, he had drunk most of a bottle of whiskey in order to calm himself. This was proven to be false by expert evidence concerning the behaviour of alcohol in the blood stream. The Court of Appeal held that the jury should have been directed that they could use the lie as evidence of guilt if they found that the lie “revealed a knowledge of the offence of culpable driving or some aspect of it”.⁷ In the circumstances of that case, the lie that the appellant told was calculated only to create a pretext for the concentration of alcohol in his blood; that is to say, the lies tended to prove that the appellant was hiding the guilty fact that at the time of the collision he was, to his own knowledge, drunk. Such a pretext was necessary if he was aware not merely that he had run over a pedestrian, for which there might be an innocent explanation, but that he had done so while intoxicated. This can be contrasted with the significance of the evidence of flight which could not unequivocally imply drunkenness.

This limited use of circumstantial evidence to prove a single fact in a wider case is not novel. Dawson J described the various uses of circumstantial evidence in Shepherd v The Queen:⁸

“Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.”

In R v Woolley⁹ five people were charged with the murder of the deceased. He had been killed by 33 stab wounds and two of these had pierced his heart and killed him. One of the five accused, Dean Rayment, pleaded guilty to murder. The other four alleged at trial that Rayment had acted “in a frenzy and on his own”.¹⁰ Evidence of their post-offence lies to distance themselves from involvement in the killing was led. The defence rationale for these lies, which were “self-protection and fear”, were put to the jury. In such a case, the evidence of lies was offered not as proof of intent, for that was proven by the nature of the killing itself, but to prove the involvement of the accused.

Similarly, in Brooks v R,¹¹ the accused was charged with murdering his domestic partner by stabbing her in the upper left of her chest. His defence was that she had stabbed herself to death. Evidence was led of lies told by the appellant. As Weinberg JA observed, murderous intent was not seriously raised as a live issue at the trial rendering any complaint about the significance of lies on the question of intent moot.¹²

What is in issue in such cases is not whether the killer, whoever it was, had intended to kill; the issue is whether it was the accused who was the killer. In such cases, evidence of post-offence conduct may be led to prove the identity of the killer. It is not relevant to consider whether the evidence was “intractably neutral” or “unequivocal” as to intent because the evidence has not been led to prove intent. It may well be neutral as to proof of intent but still be cogent evidence to prove some other element or fact in issue.

In R v Baden-Clay¹³ the issues to be proved in part by post-offence conduct and lies were whether it was the accused who had killed his wife and whether he had done so intentionally.

It has become usual to describe such evidence by the expression “consciousness of guilt”. Like all professional jargon, such an expression is a handy tool that is used to compress a large set of considerations. However, the actual content of those considerations must be borne in mind when a question arises about the use of such evidence. Such evidence is used as a link in a chain of proof or, if one prefers, one strand in a rope. Like all circumstantial evidence, it is advanced in an effort to raise a particular inference of fact that, in turn, tends to prove guilt. The logical reasoning such evidence supports is based upon the natural argument that if a person is telling lies about a crime that it is alleged he or she has committed, then that person probably has a motive to tell those lies. An inquiry into that motive, in the circumstances of all of the other evidence, may shed light upon the nature of the liar’s involvement in the crime. In the same way other behaviour of a person after a crime has been committed may also prove a motive to hide something and, in turn, the identification of what was to be hidden may be circumstantial evidence of a fact or element that the Crown must prove.¹⁴ In some cases such evidence may even constitute corroboration¹⁵ or admission by conduct.

It is, therefore, a mistake to focus attention upon “the crime charged” rather than upon the relevant behaviour of the person accused of that crime and what that behaviour may say about the fact it is led to prove. Sometimes it is led to prove only the accused’s complicity in an offence. Sometimes the accused’s involvement is admitted but an element of the offence is in issue and it is that factual element alone which is said to be proved, by inference, from the accused’s actions after the offence had been committed.

Consequently, when considering evidence of post-offence conduct as proof of guilt, whether by proof of statements or other acts, it is essential first to identify the fact sought to be proved by that evidence. The significance of the evidence, and its weight, will vary according to the relationship of the post-offence conduct to the fact sought to be proved by proof of that conduct.

The significance and weight of such evidence will, therefore, necessarily be affected by the course of the trial itself and by the forensic choices made by the parties as to the facts they choose to put in issue. It is fundamental, when considering issues of relevance, to take into account the issues upon which the parties have actually joined, be they legal issues or factual issues. As Gleeson CJ said in Doggett v The Queen:¹⁶

“In our system of criminal justice, a trial is conducted as a contest between the prosecutor (almost always a representative or agency of the executive government) and the accused (almost always an individual citizen). In the case of a trial by jury for an indictable offence, the presiding judge takes no part in the investigation of the alleged crime, or in the framing of the charge or charges, or in the calling of the evidence. Where the accused is represented by counsel, the judge's interventions in the progress of the case are normally minimal. The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration. Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused's guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any directions from the trial judge, are said to be relevant to the determination of the ultimate issue. Such a system, sometimes described as adversarial, reflects values that respect both the autonomy of parties to the trial process and the impartiality of the judge and jury.”

Consequently, in a case in which both parties have litigated upon the footing that the accused did not kill the deceased person, and in which no hypothesis consistent with manslaughter has been raised on the evidence led by either prosecution or defence, it is not open to an appellant to argue that evidence of post-offence conduct was equivocal as to proof of intention, a fact that was never in issue by either party, and then to complain that adequate directions were not given about something that was not really in dispute.¹⁷

In this case the evidence that the killing was intentional was constituted by Austasia’s evidence about what she heard and what she saw just before and just after Travis was killed. Intention was also sought to be proved by the nature of the weapon that was admittedly used by the person who killed Travis and the injuries to Travis’s body described by the medical evidence. No issue arose for the jury to consider whether, if the appellant had killed Travis in the way Austasia described and in the way evidenced by the autopsy, then he might have killed him unintentionally.

It must be remembered that in his second version the appellant admitted having killed Travis in circumstances in which his intention would have been a live issue; but he reneged on that admission in his third version and instead implicated Austasia as the sole intentional killer. Accordingly, as his counsel at trial obviously appreciated, it was absolutely crucial to persuade the jury to reject or, at least, to doubt Austasia’s evidence. Failing that, a conviction for murder was inevitable and accordingly no submission to the contrary was ever made at the trial or on appeal.

There were difficulties for the appellant in each of his stories and this included his third version. That story failed to explain the absence of any evidence consistent with the deep stab wound he described into the shoulder blade area. It failed to explain the damage to the seventh rib. It failed to explain the presence of Travis’s blood in the scabbard. It was a story that could hardly be accepted having regard to those features. The only alternative to that version, on the case as presented to the jury, was that which was offered by Austasia. The issue in the case was the identity of the killer. Intention was not put in issue. It follows that the post-offence conduct was directed to a consciousness of guilt on the part of the appellant as a murderer.

In short, the jury was faced with only two alternative hypotheses to explain how Travis was killed. Either Austasia killed Travis deliberately by stabbing him with the knife; or it was the appellant who killed Travis intentionally by stabbing him with a knife. Of course, as Henry J explained in some detail in the course of his directions, in considering those two alternatives it was also open to the jury to conclude that it was left with a reasonable doubt as to which version was true. However, no other alternative hypotheses were open and it is not open to the appellant now to shift his ground in order to make a complaint about the adequacy of the summing up.¹⁸

There was another reason why, even if intention had been a live issue, the post-offence conduct was capable of proving that the appellant intended to kill Travis. In R v White¹⁹ Major J said:

“The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute. It is possible to imagine cases in which the evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and not, for example, acted in self-defence.”

(Emphasis in the original)

This passage was referred to with approval by the High Court in R v Baden-Clay.²⁰ R v Peavoy, a decision of the Court of Appeal for Ontario, is to the same effect.²¹

In the present case, on the appellant’s second version, or the amalgam of versions two and three that the jury were invited to consider, Travis threatened to hit the appellant with a metal baseball bat. Travis was shouting at the appellant, insulting him and Travis then insulted Austasia. Provoked by these actions, including the waving of a baseball bat that was capable of causing serious harm or even death, the appellant said he hit Travis “as hard as I can”. They then “had a bit of a scuffle, [Travis] grabbed [the appellant] by the throat”. At that point, perhaps, the appellant killed Travis in self-defence or having been provoked to do so. As I have said, nothing like this was actually put to the jury at the trial by either party and the scenario was put to the jury by the learned judge, out of a concern that the jury give consideration to any possibility. In that context they were directed about self-defence and provocation and his Honour’s directions about intention to kill or to cause grievous bodily harm also became germane.

It is against the appellant’s possible mistaken self-perception of culpability on this kind of scenario that one must gauge the post-offence conduct in relation to intention. First, he disposed of the body where wild pigs might eat it. Then he almost immediately forged a document to explain his intended taking of possession of Travis’s car. He then implicated Austasia in the destruction of his own clothes and shoes although, on his version, there is no reason why a stab wound in Travis’s back should have resulted in there being any blood on his own clothes at all. He lied to his mother and to Austasia’s parents as well as to the police. He began to profit from Travis’s death by using his credit cards. He sold Travis’s car and pocketed the price. He instructed Austasia to lie.

Alternatively, he fabricated his third version in order to implicate her in the killing.

It was open to the jury to consider whether it was “so out of proportion to the level of culpability involved” if the disputed version was true that these acts of his could only be explained by his consciousness that he had murdered Travis rather than that he knew himself to be involved in a killing in self-defence or under provocation. For the same reason, it was open to consider the question of proportionality in relation to his complicity in a murder as Austasia described events.

As was also said in R v Baden-Clay:²²

“There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused has committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder.”

Indeed, it would be a rare case in which a jury could be told that they may not find that a piece of circumstantial evidence tends to prove guilt.

In Edwards v The Queen²³ Deane, Dawson and Gaudron JJ said:

“The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.”

The Victorian Court of Appeal pointed out in Ciantar:²⁴

“A jury may have regard to lies and post-offence conduct without being satisfied that there are not other potential explanations for them apart from guilt of the offence which is charged, even though it is customary to direct a jury, for “prudential reasons”, that they should not act on evidence of consciousness of guilt unless satisfied of it beyond reasonable doubt.”

In R v Melrose²⁵ Shepherdson J said, in a passage that has been cited with approval by the South Australian Court of Criminal Appeal²⁶ and by the Victorian Court of Appeal:²⁷

“I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person’s flight but that if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.”

Circumstantial evidence will always give rise to competing inferences. Which inference should be preferred, if any, is a matter for the jury and not the judge.

In this case, for the reasons I have already given, the only real question for the jury was whether it was satisfied beyond all reasonable doubt that it was the appellant who had killed Travis. That would depend upon whether the jury was willing to accept Austasia’s evidence or not. Unintentional killing did not arise for consideration and none of the evidence led in this case was capable of proving manslaughter.

For these reasons, I would reject the appellant’s submission that the learned trial judge’s summing up was defective because he failed to explain to the jury how the post-offence conduct might have been relevant to manslaughter, rather than murder.

I would dismiss the appeal.

MORRISON JA: I agree with the reasons of Sofronoff P and the order his Honour proposes.

JACKSON J: I agree with Sofronoff P.

Footnotes

1. (1971) 124 CLR 107. ↩

2. Robinson v The Queen (1999) 197 CLR 162. ↩

3. [1995] 1 Qd R 213. ↩

4. supra, at 223. ↩

5. [1989] 1 Qd R 572 at 575. ↩

6. (2006) 16 VR 26. ↩

7. supra, at 103 (emphasis added). ↩

8. (1990) 170 CLR 573 at 579. ↩

9. (1989) 42 A Crim R 418. ↩

10. supra, at 421. ↩

11. (2012) 36 VR 84. ↩

12. supra, at [71]. ↩

13. (2016) 258 CLR 308. ↩

14. see also R v Perera (1982) VR 901 at 910 per Murray J. ↩