R v Rich

Supreme Court of Victoria|2009-02-06|Before: LASRY J

CRIMINAL LAW - Consciousness of guilt - Post-offence conduct - Application to Adult Parole Board to travel overseas - Prejudice - Discretion to exclude - Voir dire - Accused wishes to give evidence - Circumstances where appropriate.

1 The accused is charged with murder, armed robbery and other related offences, the brief detail of which I have outlined in other rulings I have delivered in this matter.[1] Between August and October 2008 I heard debate concerning a number of pre-trial issues as well as several Basha enquiries. The Crown case against the accused is that on 8 March 2005 at the Blackburn North Shopping Centre, he, assisted by others, carried out an armed robbery resulting in $162,000 being stolen from Chubb security guards who were delivering money to the Commonwealth Bank of Australia. During the course of the robbery one of the guards, Mr Erwin Kastenberger, was fatally shot. The Crown case is that the person responsible for causing the death of Mr Kastenberger was the accused, Hugo Alistair Rich.

2 There will be a number of issues in the trial but the primary issue for the jury's determination will be whether the Crown can prove to the required standard that the accused participated in the armed robbery together with the Crown witnesses Leonard Ryan and Sean Hogan and that the accused shot Mr Kastenberger. As I have noted in other rulings,[2] the defence of the accused is alibi. His case will be that at the time of the armed robbery and murder he was in the vicinity of his office in the central business district of Melbourne.

3 Relevant to the issue which is the subject of this ruling, in paragraph 57 of the Summary of Crown Opening the following appears:

Early on the morning of 9th March 2005 [the morning after the armed robbery and murder] Rich went to the office of Flight Centre in Queen Street Melbourne. The office was not yet open. He discussed booking flights out of Australia. He said he needed to leave within a week as he needed to sort out a passport. He was rushed. He wanted the ticket immediately and did not care who he was flying with. In the days following he booked a flight leaving Melbourne on 16/3/05 and returning 8/4/05. He later cancelled the flights and was refunded a portion of the funds paid. The circumstances of the booking and cancellation will be led in evidence.

4 The evidence which is the subject of that paragraph is objected to on behalf of the accused by Mr Edney of counsel as being inadmissible. It has been referred to by the Crown as "flight" though in fact there was no actual flight by the accused. It is more appropriately described as post-offence conduct which the Crown relies upon to demonstrate a consciousness of guilt or an implied admission by the accused as to his involvement in the offence.

5 The evidence which is summarised in the Summary of Crown Opening is the evidence expected to be given by a witness Ms Quimby MacIntosh who worked at the Flight Centre situated on the ground floor of 150 Queen Street, Melbourne. In her statement she describes the accused going to the office at 8.45 am on 9 March 2005 and being told to return after 9.00 am. Her statement reveals that he did so. When he returned he informed Ms MacIntosh and a person working with her of the places he needed to travel to and the dates and amount of time he needed to spend in each destination. She recalled that he was not flexible at all with the dates and did not say why he was travelling. He did not say he was travelling on business but had wanted to travel business class for the whole trip. He informed Ms MacIntosh that he needed to leave within a week and was still sorting out his passport. In her statement, she described him being very specific about how many days were required at each destination. He was offering a credit card for payment there and then and was proposing to "sort out" his passport and return within the hour. He was indifferent as to who he was flying with but wanted the ticket immediately. The statement includes the following passage:

All he wanted was the ticket immediately. He tried to leave us his credit card while he sorted his passport. We didn't take it. He didn't care about the cancellation fees or any other airline information.

6 The witness' statement indicates that about two hours later the accused returned to the office and spoke to another person. He paid for his ticket by credit card on 11 March 2005 using a driver's licence as identification. Ultimately the booked travel involved him leaving Melbourne on 16 March 2005 and returning to Melbourne on 8 April 2005. On Friday, 11 March 2005, he went to the Flight Centre office and informed the staff that he needed to change his dates of travel and was proposing to delay the trip by about a month. After some attempts to contact him by phone, on 18 March 2005 a male person entered the office and told the staff that he was the business partner of the accused, that the accused had been involved in a car accident and could no longer travel. He also requested that the flights booked for the accused be postponed. On 29 March 2005 a letter was received by Flight Centre, apparently from the accused, referring to the man who had attended earlier as Mr James and requesting that his flights be cancelled. A sum of money representing about $2,900 less than the amount paid was refunded to the accused's credit card.

7 The Crown submits that Ms MacIntosh's evidence is an aspect of circumstantial evidence that is sought to be relied upon for the purpose of pointing to a consciousness of guilt. In the course of submissions it appeared that the Crown also relies on it for a second purpose described by Mr Tinney SC in the following terms:

The evidence would disclose that Mr Rich is possessed of $140,000 on or about 8 March shortly after 12.45, that he is entering into a contract in relation to the storage unit the following day, and that he, being a person who is not entitled to leave the jurisdiction, or even if that were not the case, he is a person who is, on the Crown case, possessed of that money, who then in describing his reasons for travel describes to Grundy his desire to travel overseas to visit a bank. So to that extent there is a separate basis upon which it could be relied upon as one of the facts, quite independent of the reliance upon the notion of implied admissions.[3]

8 The primary submission put on behalf of the accused in support of the application that this evidence be excluded from consideration by the jury was that the evidence, as it stands, could never amount to evidence of consciousness of guilt and therefore is irrelevant and should not be admitted or opened by the Crown.[4]

9 Part of that submission involved an analysis of the evidence that the Crown proposed to lead. Counsel for the accused pointed to other evidence that is relevant to this issue, including that:

there had been a plan for the accused to travel overseas for some time prior to 9 March 2005;
the accused was not spoken to by police regarding his whereabouts on 8 March 2005 until 12 March 2005 (after he had already made the booking);
the ticket sought to be booked was to be a return ticket; and
the booking was subsequently cancelled.

10 During the course of the application, I was informed by counsel for the accused that he wished to give evidence in relation to the matter.[5] Mr Edney submitted that Mr Rich would have to be heard at some stage. As best I could follow, the purpose of that evidence was to outline an innocent explanation for the events of 9 March 2005 and to emphasise the existence of pre-existing plans by the accused to travel overseas. In addition, counsel for the accused also announced that they wished to call another witness, a Mrs Mohr, who could give evidence that there was a longstanding intention on the part of the accused to travel to Germany as early as 2003. Counsel for the accused also referred to the fact that a solicitor, Mr Terrence Grundy, wrote a letter to the Adult Parole Board on 11 March 2005 on the accused's behalf, which included the following:

We now write on behalf of Mr Hugo Alistair Rich to formally request that he be permitted to travel to Italy, Spain, Isle of Man, United Kingdom, and Germany for the purposes of conducting research for one of our clients who is currently facing an extradition application by the Republic of Singapore.

Mr Rich has great insight and knowledge about the workings of the human rights laws and legislation and it is this aspect he will be researching, consulting for this form, and it's [sic] client, who for reasons of confidentiality must not be identified.

It is anticipated that Mr Rich will depart Melbourne next Wednesday evening (16 March 2005) and return some 21 days later (6 April 2005).

We apologise for the lateness of this request but due to circumstances outside our control, we have had no other option but to make this urgent and immediate application to the Board.

This application to travel overseas was rejected by the Board on 17 March 2005.

11 It was expected that having heard the evidence to be given by the accused (and also by his witness), it would be submitted on behalf of the accused that the Crown's contention that his conduct on 9 March 2005 represented preparations for flight could never be sustained.

12 As I raised with counsel during the course of the debate, there is a difficulty in dealing with this evidence at this stage of the proceedings. The Crown says that the evidence of Ms MacIntosh is capable of amounting to evidence of an implied admission on behalf of the accused when taken with the other evidence. Whether it is or not is to be answered by an evaluation of all the relevant evidence. However, I have been asked to examine this matter in isolation because at the time at which this debate occurred I had not heard all the relevant evidence. Counsel's response to my enquiry was that it should be possible for me to make a decision whether or not Ms MacIntosh's evidence should be permitted to be opened and therefore led as evidence in the trial.

13 In support of the request made on behalf of the accused that he be permitted to give evidence on the voir dire I was referred to R v Bridgman.[6] That case is the report of a ruling by White J who was the trial judge at the trial of an accused during which the Crown had proposed to lead evidence of, and cross-examine the accused concerning, him absconding whilst on bail. The purpose of this evidence was to establish a consciousness of guilt on the part of the accused. As his Honour observed, during the course of the cross-examination of the accused he had ordered a voir dire hearing as to the accused's reason for fleeing. The accused gave evidence that at the time of the commission of the alleged robbery with violence and assault he was on parole from prison, having been released from custody a week or so beforehand. If he was convicted of the robbery with violence and the assault, his parole would almost inevitably have been revoked although the particular act of robbery with violence was not a very serious matter in itself. His Honour was satisfied that flight from the prospect of serving the ten months' balance of the original term of imprisonment was the more substantial reason for him fleeing. He did not permit the evidence to be put before the jury.

14 The approach of White J in hearing evidence from the accused on the voir dire was said to have been supported by Eames JA in R v Dickinson[7] where, albeit in a dissenting judgment, his Honour said in relation to evidence of flight:

In my view, the evidence was not capable of supporting the inference sought. If I am wrong in that conclusion - and my brother judges have concluded that I am - then the judge ought to have excluded it on the basis that its prejudicial effect far outweighed its probative value, but no application was made to the judge on that basis.[8]

Footnoted to that paragraph of his Honour's judgment was the following reference:

As was the approach adopted by White J in R v Bridgman, albeit that there was the additional factor in that case that the accused man could not disclose what he claimed to be the alternative, innocent, explanation for flight without disclosing to the jury his prior convictions.[9]

15 However, the situation before me is different. The evidence the subject of this application is not inherently prejudicial. Further, in many respects the desire on the part of the accused to give evidence and call a witness highlights an imbalance that would be involved in such a process. I would be called upon to rule in relation to the admissibility of this evidence after having heard the accused and his witness and without having heard in detail any of the Crown case apart from that which I have heard during the course of the Basha enquiry and what is contained in the depositions. The question I raised with counsel was whether, if the evidence was admissible and can be explained, it can be explained in the presence of the jury. Counsel again referred to R v Bridgman and submitted that this was a discrete issue where the facts were settled and the leading of the evidence at trial is not going to change. However, that submission ignores the role to be played by other circumstantial evidence which may have an effect on the way in which this evidence is to be evaluated. The Crown did not accept that the matter is settled, and did not support the suggestion that the accused should give evidence on the voir dire. Whether or not the accused should be permitted to give such evidence has become in itself an issue that I need to resolve.

16 The submission that the accused should give evidence was persisted with at some length by counsel on the basis that I would need the complete evidentiary picture to make a judgment as to the admissibility of evidence.[10] The debate was encapsulated by the following exchange between counsel and myself:

But in my submission there are really those two aspects, Your Honour, that at the moment Your Honour doesn't have the complete evidentiary picture to make a judgment as to the admissibility of the evidence. The second aspect Your Honour is that - - -

Can you tell me why, if there's an alternative explanation for a piece of evidence, why does that make it inadmissible?

Because in this situation, Your Honour, it would make the issue as to flight irrelevant.

But it depends on the alternative explanation being accepted.

That's not the trial judge's role. I'm not here to determine the facts. I'm not here to in advance of the trial resolve factual issues between the accused and the Crown. It's the very thing I'm not here to do, except to the extent that it's necessary, but I don't presently, Mr Edney, regard this application as one of those circumstances.[11]

17 The voir dire is a procedure which is conducted during a trial upon the admissibility of evidence being questioned and has been described as a trial within a trial. The voir dire provides the respective parties with the opportunity to adduce evidence relevant to the subject matter of the enquiry and allows the Court to determine whether impugned evidence should be admitted in the substantive trial. Generally a voir dire is held to determine whether the pre-conditions for the admissibility of evidence in the trial proper have been satisfied or whether admissible evidence should be excluded in the exercise of the Court's discretion.[12]

18 The question in this case is whether or not the accused has a right to give evidence on the voir dire in every situation where evidence intended to be led by the Crown is argued to be inadmissible. In other words, is the right of the accused to give evidence on the voir dire unqualified?

19 In R v Cowell,[13] objection was taken at trial to the admissibility of a statement made by the prisoner confessing to the commission of a murder. The trial judge ruled that the statement was admissible and ultimately the applicant was convicted. The Court of Appeal was concerned with, among other things, whether it was appropriate for the accused to be called on the voir dire on the issue of the admissibility of his statement. In the judgment of the Court of Appeal, the following appears:

In the absence of the jury during the discussion as to the admissibility of this statement, the question arose as to whether the prisoner himself could be called as a witness. Counsel for the prisoner, bowing to what he understood to be laid down in R. v. Baldwin, himself hesitated as to whether he should call the prisoner. Humphries, J., (the trial judge) thought that he could, and, indeed, it is only fair to the judge to say that he encouraged counsel to call the prisoner. Whatever R. v. Baldwin decided, this court is of opinion that, in such circumstances, it is proper to allow the calling of the prisoner himself as a witness if the justice of the case requires that it should be done.[14]

20 In Ex parte Hamilton; Re Fagon,[15] Collins J was concerned with the return of an order nisi for a writ of statutory prohibition granted to the applicant and directed to the respondents who were a sergeant of police and a stipendiary magistrate calling on them to show cause why they should not be restrained from further proceeding in respect of a conviction of the applicant for an offence under the Vagrancy Act 1902 (NSW). This case concerned a failure by the magistrate to permit the accused person to give evidence on the voir dire and it was further asserted that the magistrate erred in law in not permitting the applicant to give or call evidence on the voir dire in relation to the admissibility of the applicant's record of interview.

21 Justice Collins held that there was a statutory right in New South Wales for an accused person to give evidence on a voir dire in relation to the admissibility of a statement allegedly made by him and that such a right was not subject to the Court's discretion and cannot be refused.

22 Justice Collins referred to the judgment of the English Court of Appeal in R v Cowell and observed:

As a matter of principle, it is difficult to ascertain the method by which a judge can arrive at the conclusion whether or not in a particular case, the interests of justice make it desirable to allow the prisoner to be called as a witness. If the witnesses for the prosecution do not admit the use of an inducement, it is difficult to see how a judge can ever justify a conclusion that an accused should not be permitted to give affirmative evidence of the alleged inducement, nor is it possible to envisage the principles on which a discretion could be exercised.[16]

As has been seen, these apparent limitations have been adopted by the learned authors of Archbold's Practice. A different view is expressed in somewhat emphatic terms in Wigmore on Evidence, where it is said: -

The judge must hear the defendant's evidence (including evidence from cross-examination of the prosecution's witnesses) upon the issue of voluntariness.

Whatever may be the position in England, I am of the opinion that this statement of Professor Wigmore accords with the law of the State, so that an accused person is entitled as of right to give evidence and to call evidence on the issue of the admissibility of his confession.[17]

24 In R v Browne-Kerr,[18] the Court of Criminal Appeal of this State was concerned with an applicant who had been convicted on 26 counts of forgery and in respect of which expert evidence had been given before the jury that the author of the forged documents was the same person as the person who had written two standard or "control" documents. An issue arose as to whether the applicant was in fact the author of the control documents or at least of all of them. Counsel for the applicant requested the trial judge to conduct a voir dire to determine the admissibility of the control document and that application was rejected.

25 In many respects that case revolved around s 148 of the Evidence Act 1958 which provided:

Comparison of a disputed writing with any writing proved to the satisfaction of a court or person having by law or by consent of parties authority to hear receive and examine evidence to be genuine shall be permitted to be made by witnesses; and such writings and the evidence of witnesses respecting the same may be submitted to such court or person and the jury or assessors (if any) as evidence of the genuineness or otherwise of the writing in dispute.

26 In relation to the entitlement of the accused to give evidence, the Full Court observed as follows:

As previously referred to, when the applicant's counsel indicated to the judge before the jury was empanelled that he challenged the admissibility of Exhibit G [the control document] and made application that the matter be determined on a voire dire, he also made it plain that, if necessary, he proposed to call the applicant on the voire dire to give sworn evidence as to the circumstances of the making of that document. This was a right that the applicant, of course, had while retaining the further right on his trial before the jury to elect whether he would stand mute, make an unsworn statement or give sworn evidence.[19]

... nevertheless by rejecting the application to consider the matter on a voire dire, he [the trial judge] was in the circumstances of this case depriving the applicant of the opportunity to offer evidence on oath to counter that of the witnesses called on behalf of the Crown. This failure deprived the applicant of an important right conferred by s. 148. The judge could not say in advance what effect any such sworn evidence might or might not have on his mind.[20]

28 The Court went on to conclude that the appeal should be allowed and that the ruling given by the trial judge and his failure to comply with the requirements of s 148 of the Evidence Act 1958 vitiated the verdicts of the jury.

29 There can be no doubt that the High Court has endorsed the entitlement of an accused to give evidence on a voir dire in relation to an allegation concerning an impugned confession particularly where voluntariness may arise.[21] However, it does not follow that an accused is entitled, as of right, to give evidence on a voir dire in order to persuade the trial judge to perform a fact-finding exercise which is properly to be left for a jury.

30 In support of his desire to hold a voir dire in which the accused would be called to give evidence, counsel for the accused, Mr Edney, relied on two judgments of the Court of Criminal Appeal in New South Wales. In the first, R v Cook,[22] the accused was convicted in the District Court of New South Wales of the offence of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse. The Crown indicated at an early stage its intention to adduce evidence of flight on the part of the appellant as a signification of his consciousness of guilt. The appellant, on that question of the admission of flight evidence, said that in order to give an explanation for his conduct he would necessarily reveal the existence of an apprehended domestic violence order, his previous breach of it, and the assault. This, he said, was the reason why he fled when police approached him.

31 On the voir dire in that case the appellant gave evidence but that evidence was not accepted by the trial judge. In this case counsel for the accused relies on the following passage:

In this case, that examination [of the evidence] inevitably gives rise to a conclusion that the probative value to the Crown case was very high indeed. Within five days of the assault on the complainant, the appellant twice fled when police approached. The inferences available for the jury are obvious.

The balancing exercise required by s 137 [of the Evidence Act 1995 (NSW)] cannot, however, be undertaken without an appreciation of any explanation an accused person might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise. That was the purpose of the evidence given by the appellant in the voir dire.[23]

32 Ultimately, the trial judge admitted the evidence and the Court of Criminal Appeal concluded that the prejudicial effect of the evidence was unfair and outweighed the probative value. Therefore, the Court held the evidence was wrongly admitted.

33 Mr Edney relies on that reasoning and the fact that in R v Cook, the New South Wales Court of Criminal Appeal referred with approval to the South Australian case of R v Bridgman to which I have earlier referred.

34 The other case to which Mr Edney referred was R v Sood.[24] In that case the respondent to the appeal was charged on 96 counts of dishonestly obtaining a financial advantage from the Health Insurance Commission and the trial was aborted following a ruling by the trial judge resulting in the exclusion of evidence from the Crown case pursuant to s 137 of the Evidence Act 1995 (NSW).

35 In the course of the judgment the New South Wales Court of Criminal Appeal quoted with approval portions of the judgment delivered by the same court in R v Cook to which I have already referred.

36 In my opinion, in the case before me it would not have been possible nor fair to hold less than a complete voir dire. It is entirely logical that in order to conduct a proper voir dire on this issue all the evidence which the Crown said was connected with what occurred on the morning of 9 March 2005 be called as well as evidence from the accused. That should only occur, in my opinion, if there is a real question of unfairness to be considered and the voir dire should not be used as a means of testing the evidence of Crown witnesses before the trial proper starts.[25]

37 The granting of a voir dire is not a right of an accused person. It is within the discretion of the trial judge to accept or reject an application that a voir dire take place. There needs to be significant reason why such a voir dire should be held before the exercise is commenced. The pre-trial argument in this case which has included substantial Basha enquiries has lasted from 25 August 2008 until 31 October 2008. With two further days in December 2008, that hearing has occupied 41 sitting days. Such lengthy preliminary argument immediately evokes a recollection of the observations of Brooking JA in R v Frugtniet & Frugtniet[26] where his Honour said:

The last two decades have seen what we should like to think is the apogee of the long criminal trial, with its attendant quasi-criminal proceedings, and the apotheosis of its boon companion, the bloated voir dire. The importance which the voir dire has assumed was marked by the publication in 1997 of a text book devoted to it containing 5522 footnotes: Stephens, Voir Dire Law. If, on the basis that the courts seem unable to keep the length of criminal trials within reasonable bounds, the legislature was ever minded itself to intervene, the incubus constituted by the interminable voir dire might prove to be a useful starting point.

38 Whilst I disagree, with respect, with some aspects of the generalised comments made by his Honour, I do consider that when it comes to deciding whether a long voir dire which will amount to little more than a rehearsal of the evidence should be conducted, the importance of keeping criminal trials within "reasonable bounds" is an important factor to be considered. I have come to the conclusion that it is unnecessary in this case to conduct a voir dire which involves the calling of evidence concerning the events of 9 March 2005. I will deal shortly with whether that evidence is admissible but I am not satisfied that the accused has put forward good reason why the evidence should be examined on the voir dire and why it is necessary for him to give evidence as part of that proceeding. I am by no means persuaded that any evidence that the accused might give would affect the admissibility of the evidence. On the contrary, the intention of such a process is that I make factual determinations which are, in my view, "quintessentially"[27] jury issues subject to the determination I must make when all the evidence is completed.[28]

39 This evidence of Ms MacIntosh is, in my opinion, admissible and it is a matter for the jury to determine whether they accept that the evidence should be used in the way in which the Crown contends it should be. The evidence reveals that on the day following the armed robbery and murder the subject of this case, the accused man was seeking to make arrangements to leave the country at the earliest opportunity and was allegedly possessed of sufficient funds to make arrangements for business class travel. The accused has, he asserts, an explanation for this proposed travel which is an innocent explanation.

40 In Ciantar v R,[29] the Court of Appeal was concerned with issues as to whether or not, where evidence of flight was part of the Crown case, it could only be used as evidence of the consciousness of guilt of the accused if the jury were satisfied that it sprang from a realisation of guilt of the crime charged as opposed to having been engaged in some lesser unlawful activity. In discussing lies and other post-offence conduct the Court of Appeal said:

Lies and post-offence conduct are a species of circumstantial evidence. An inference of guilt may be drawn from the concatenation of circumstances including the post-offence conduct. The process of reasoning from "strands in a cable" of circumstantial evidence discussed in Shepherd v R was applied in Edwards v R. Whether a statement proved to be false is capable of demonstrating a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend upon "the terms of the statement, the circumstances in which it is made, the nature of the offence charged and the other evidence in the case".

As with other forms of circumstantial evidence of guilt, a jury may accept evidence of lies and other post-offence conduct and act upon it without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is to say, without being satisfied that there is no other explanation of the lies and post-offence conduct which is reasonably open on the facts).

Deane, Dawson and Gaudron JJ made the point in Edwards as follows:

... 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 [or post-offence conduct] 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.

Similarly, in R v Kotzmann Callaway JA illustrated how a lie allegedly told from a consciousness of guilt, when constituting "a strand in the cable", was to be considered with all of the other accumulation of evidence.[30]

41 The Court also addressed the "controls" which "customarily apply to the use of evidence of consciousness of guilt" as prescribed in Edwards:

Post-offence conduct is not to be left to a jury as evidence of consciousness of guilt unless it has first been precisely identified together with the circumstances and events that are said to indicate that by engaging in the conduct the accused demonstrated a consciousness of having committed the offence which is charged.

The judge must also be 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.

So, if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But 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 an included offence or another count on the presentment or 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.[31]

42 In this case the submission of counsel was that the evidence which the Crown seeks to rely on is irrelevant. However, an inference of guilt may be drawn from the "concatenation of circumstances including the post-offence conduct". Whether this post-offence conduct of the accused can be proved to be capable of demonstrating a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend upon the nature of that conduct, the circumstances in which that conduct occurred, the nature of the offence charged and the other evidence in the case. Such evidence would include any explanation which the accused determines to give. At the completion of the evidence and in accordance with principle I will be required to decide whether the evidence of this conduct should be left to the jury to determine whether it demonstrates a consciousness of guilt on the part of the accused. That is the appropriate time to deal with that issue and at this stage, in my opinion, the evidence is relevant and therefore admissible.

43 It is to be noted that this evidence is not inherently prejudicial. However, counsel for the accused relied on a prejudicial effect of the evidence being that because of the history of the accused, including material obtained from the Adult Parole Board, he will be prevented from explaining this evidence without revealing that he has previously been in custody and was on parole as at 9 March 2005. In essence, as I follow it, that relates to the need for him to seek permission of the Adult Parole Board to travel overseas.

44 The accused was released on parole in October 2004. He was obviously subject to the supervision of the Adult Parole Board. Counsel for the accused accepts, as the Crown asserts, that prior to 8 March 2005, there is no record on the Adult Parole Board file indicating that the accused had notified a pre-existing intention to travel overseas and any reason for doing so. Counsel then submitted that the next difficulty faced by the accused is that the ticket was cancelled and an explanation for the cancellation was the refusal of permission by the Adult Parole Board when a request was made subsequent to the ticket being booked.

45 I am unable to see why a reference to the Adult Parole Board will be necessarily a part of the resolution of this issue - indeed counsel for the accused appeared to accept that such a consequence was not inevitable.[32] Primarily, the Crown relies on the conduct on 9 March 2005 and the evidence given about the associated urgency of the travel that was proposed. The explanation to be given by the accused is said by him to be an innocent one that pre-existed 8 March 2005. Those matters can be the subject of evidence. I will, of course, keep the matter under review in accordance with my conclusions in Ruling No. 14.[33]

[1] See, eg, R v Rich (Ruling No. 1) [2008] VSC 119R at [2]- [3]; R v Rich (Ruling No. 2) [2008] VSC 141 at [4]- [6].

[2] See, eg, R v Rich (Ruling No. 13) [2008] VSC 520R.

Vagrancy Act 1902(NSW)

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