R v Shiers [2003] VSCA 179

Court of Appeal (Vic)|2003-11-18|Before: VINCENT and EAMES, JJ.A. and ASHLEY, A.J.A.

The applicant now seeks leave to appeal against the convictions and sentences imposed upon him, on the following grounds:

(1) that in all the circumstances of this case the learned trial judge erred in defining provocation to the jury;

(2) that by reason of the nature of the prosecution case made against the applicant the learned trial judge erred in failing to give the jury an "Edwards"[2] type direction.

Ground of Application for Leave to Appeal against Sentence

That in all the circumstances of this case the sentence was manifestly excessive in that the learned trial judge should have made the sentence on count 2 wholly concurrent with the sentence on count 1.

The following description is based upon the summary of evidence adduced at the trial and provided to this Court. As I understand the position the applicant does not contest the accuracy, or adequacy for present purposes, of what is there stated.

The deceased was, at the time of his death, 40 years of age and suffering from a condition called cardiomyopathy which limited his physical endurance. He had, in 1998, separated from his wife Colleen Burdon in circumstances that also led to the making of an apprehended violence order against him. There was however, according to Mrs Burdon, no act of violence perpetrated by the deceased against her in the period between the taking out of that order and his death on 11 December 1999.

Shortly prior to the events with which we are here concerned, Colleen Burdon confided to a friend, Anne Niehus, that her husband had been violent during their marriage. Ms Niehus passed on this information to the applicant. At that stage, there was already some ill-feeling between the two men. Burdon suspected that the applicant was involved with his wife and there had been an occasion on which the applicant had proved, in his opinion, to be an irresponsible custodian of one of the Burdon children. This ill-feeling surfaced in an argument which took place about a week prior to the death of the deceased in the course of which Burdon called the applicant "a little dog".

At approximately 1.30 a.m. on 11 December 1999, a group of friends walking past Burdon's home at 3 Mill Street, Wahgunyah, heard the sounds of a violent argument issuing from the darkened house. One of the passers-by heard a voice he identified as that of the deceased saying "What the fuck are you doing?" The group then moved on.

At around 3.20 a.m. a cyclist smelled smoke in the area of the township and at 7.15 a.m. three passing motorists observed that the residence at 3 Mill Street was on fire. Firefighters attended and extinguished the blaze. In the bedroom they found the severely burnt body of the deceased. Subsequently, investigators who examined the scene formed the opinion that the fire had started around his feet and legs.

A autopsy revealed that Burdon had received 42 stab wounds and that there had been at least two separate blunt object impacts to his head occasioning a subdural haemorrhage and major damage to the front of his face. There were stab wounds to the chest, face, head and neck areas and seven or eight to the back which may have been inflicted after death. Some of the wounds were of significant depth, one passing almost right through the neck and another to the chest was inflicted with sufficient force to fracture a rib. The cause of death was stated by the pathologist to be "multiple stab wounds in a man with facial fractures and subdural haemorrhage".

The applicant was spoken to by police on 12 December 1999 and he denied any knowledge of this matter.

On 16 December he was arrested and formally interviewed. He told the police that he had gone to the deceased's home during that night at approximately 1.30 a.m. and provided a version of what then occurred. He stated that he had consumed some alcohol, but said that he was not completely drunk. He claimed, in effect, that he wanted only to counsel the deceased about his violence to Colleen Burdon and its potential effects upon the Burdon children. He did not wish any harm to him. He provided no explanation for visiting the house at such a late hour. He entered the house and came upon the deceased who he though had been in bed. Burdon was dressed in his underwear and they met in the hallway. Burdon, he said, reacted negatively to both his intrusion and his attempts at counselling. Heated words were exchanged and Burdon attacked him, punching him on the nose:

"I took a back step. Like, took a backward step and then sort of charged him, like, into the gut area and we were wrestlin' - wrestlin' in the lounge room and then we both got to our feet again and then - - -

...

... and then we got up. Like, we both got to our feet, sort of thing, and - and then we clashed again and we went through the door. Like, through the hall and through that door into I guess where he was found in his bedroom."[3]

At one stage of the struggle which then took place, they were wrestling on the floor of the darkened front bedroom with Burdon getting the better of him. The applicant stated that he reached out and, in the dark, his hand chanced upon an object on the floor. This object, it transpired, was a knife. He took hold of it and used it to threaten the deceased in an endeavour to persuade Burdon to desist from attacking him. But, as Burdon who was at that stage on top of him did not "get off", the applicant stabbed him. This only made Burdon angrier, and so he stabbed him again, "six times tops", while calling upon him to "Stop what you're doing". Ultimately he realized that Burdon was dead. The applicant sustained, at most, a cut to his nose and a graze to his fist in this confrontation.

He denied that he had taken the knife to the house and, initially, that he was wearing gloves at the time. A knife covered in the blood of the deceased was discovered on a path leading to the distant location where the applicant stated he had parked his car on that night. There was evidence that the applicant had handled a knife similar to that knife in the hours preceding his visit to the deceased's home. The bloodied knife was also of the same make as a second knife subsequently found at the farm at which the applicant resided.

Bloodied gloves and a bloodied windcheater traceable to the applicant had been found on the verandah of the premises. He was asked:

"353. Did you attend at the premises in possession of the gloves, wearing the gloves? Well, I was think -, I've been thinkin' about that and - and I don't think I did. Like, I would honestly tell you if I - if I did take `em from - from home, but I really don't think I did. I think I must have got them there as well. 354. Whose gloves do you think they are? I have no idea. 355. What's the purpose of having the gloves? Well, I can't even figure that out to myself. I - I just don't know."[4]

...

"473 All right, that's fine. Just in relation to the gloves, you said before - well, you were intimating that the gloves might have come from Shane's house. Yeah. Well, I can't - like, I'm pretty positively sure that I left my place to go and see him just as I was. 474 Okay. All right. Like, I had no intention of goin' there to do anything, like, apart from talk to him and I left there empty handed."[5]

...

"479 Yep. So I don't know. They might be his son's. I don't know. They would be - I don't know. If they fitted me I would say they would be too big for his son. 480 All right. And you don't remember those being on your hands at any time? No, no. Like, I can't remember, like, takin' the jumper off. Like, I don't know why I would have taken the jumper off or, you know, just to leave it on the front porch. Like, I've just freaked out, obviously, and just left it there, sort of, you know."[6]

The applicant denied to the police that he had intentionally set the house alight, and claimed that the fire was started accidentally when, shocked at the sight of Burdon's bloodied body, he dropped a lighted tea-towel that he was using as a kind of torch in the darkened premises.

At the trial, evidence was given by Ms Karen Ireland, a fire investigator and chemical analyst at the Victorian Forensic Science Centre, that she conducted a series of experiments with tea-towels. She found that she was able to ignite a cotton tea-towel by applying it to a preheated kitchen hotplate. She then said:

"[W]e set up a mock bedroom in one of their testing houses, and what we did was, we furnished it with a single bed. We put some carpet down, a dressing table, and a bookshelf. It was quite a small room. What we did was, ignited the tea-towel, in a similar fashion, and just dropped it onto the carpet, in the centre of the room. What happened?---The tea-towel continued to burn until it basically just self-extinguished. The tea-towel - all that was left of the tea-towel - was charred remains of material, but it didn't actually set the carpet alight, and then continually didn't set any of the furnishings alight, in the room. There was just a minor char on the carpet, underneath the tea-towel. Relating that experiment to this case, what do you say is the likelihood that this fire was caused by a tea-towel being dropped onto carpet in the room?---In any case, it would be extremely unlikely to ignite carpet from something such as a tea-towel being dropped upon it, just because the tea-towel itself isn't a large amount of material and it doesn't create enough heat or gases - sorry, the heat, the gases, and the smoke all rise above the tea-towel and don't actually work its way down into the carpet. And did the damage to the floor, beneath the floor, tell you anything about the likelihood that the tea-towel caused the fire?--- I'd say - in the room? Yes?---Sorry, the room at Mill Street? At Mill Street?---You'd have to say that the tea-towel has ignited other - the furnishings or materials in the room. It's unlikely that just dropping a tea-towel onto flat carpet will ignite the carpet. "[7]

The witness agreed, however, that she could never create an exact replica of the conditions that existed in the house at the time.

Peter Woodman, another scientist at the Forensic Science Centre examined some partly charred fibres that had been recovered from the kitchen stove. He said that the fibres were cotton and could have come from a tea-towel.

The central issues raised in this trial were relatively straightforward and there is no reason to suppose that any confusion may have been present in the minds of the jury concerning the respective prosecution and defence contentions with respect to them.

The prosecution submitted to the jury that they should find beyond reasonable doubt that -

* against a background of personal animosity directed against Burdon, the applicant had gone to his home at the unusual hour of 1.30 a.m. on the night in question;

* he did so for the express purpose of killing him;

* he was wearing gloves and was armed with a knife;

* he parked his car some distance from the premises;

* at the house, he struck the deceased at least two heavy blows to the face and head with a blunt object of some kind, and he inflicted 42 stab wounds;

* before leaving, and in order to destroy any evidence that could link him with the death of Burdon, he set fire to the house;

* his gloves and the windcheater that he had been wearing, and which were covered in the deceased's blood, were left on the verandah to be consumed in the anticipated blaze;

* he discarded the knife as he proceeded back to his vehicle;

* in the implementation of his plan, however, when initially interviewed by the police, the applicant denied any knowledge of the night's events;

* on it becoming clear that this strategy would not work as the police could connect him with the death of the deceased and the premises, he concocted a story designed to exculpate himself;

* he attempted to provide explanations for each of the pieces of incriminating evidence discovered by the police as he became aware of them, but, in doing so, found it necessary to resort to a version remarkable for its implausibilities and the deliberate making of demonstrably false statements.

In his address to the jury, the prosecutor described the version given by the applicant to the police as "a work of fiction" and "an elaborate concoction". He referred to "the sheer improbability of his account" and described the interview as raising "a smoke and mirrors defence"[8]. Finally, he submitted to them that, considered in the light cast by the objective evidence and having regard to serious deficiencies in his version, the possibility raised by the applicant in his statements to the police that he acted in lawful self-defence or under provocation could be discounted.

In response, counsel for the applicant argued that the jury should not be satisfied beyond reasonable doubt that the applicant was guilty of either of the crimes alleged against him, advancing the following propositions:

* His explanation for going to the deceased's home could not be discarded in the circumstances disclosed by the evidence. He was understandably concerned about the welfare of the Burdon's wife and children and the possible long term impact of domestic violence upon those who experienced it as he had done.

* His version to the police that there had been both a verbal and physical confrontation between Burdon and himself was supported by witnesses who heard a heated argument and one gave evidence of a thumping sound.

* The evidence indicated that Burdon had "an unpredictable and violent temper" and he was clearly capable of attacking the applicant, although with reduced physical capacity. The facial injuries and subdural haematoma sustained by the deceased may well have been suffered in the course of such a struggle.

* With respect to the number of stab wounds, the applicant told the police that, towards the end of the confrontation, he "lost it". That he possessed an imprecise recollection of the number of blows inflicted was, in the circumstances, clearly understandable.

* His explanation for the origin of the fire, namely that he had ignited a tea-towel to provide light when he was unable to turn on the lights in the darkened house and then, in shock, dropped it near the body of the deceased was also consistent with the objective evidence.

* The prosecution evidence with respect to the knife was uncertain and insufficient for the conclusion to be drawn that the applicant had taken it with him to the house. It had not been established that the knife earlier seen in his possession was the same as that used by him. Nor was there any evidence concerning the number of such knives in the community against which the significance of the presence of a similar knife in his home could be assessed.

* There were many explanations as to why a person might wear gloves and the evidence indicated that the night was sufficiently cold for a windcheater to be worn. There was nothing sinister in the applicant's choice of garb or his uncertainty of recollection concerning the gloves.

* Neither could his explanation that he parked his car some distance from the house as he did not want to be detected driving an unregistered car whilst unlicensed and at a time when his blood alcohol level exceeded .05%, be reasonably rejected.

In summary, the defence contended that the version of events given by the applicant to the police should be regarded as constituting a basically truthful account of the events as he recalled them. Any incorrect statements or deficiencies had to be considered against the background of the traumatic character of the event and the stress of the interview situation.

The Application for leave to Appeal against Conviction

This ground relates to the instructions given by the trial judge to the jury with respect to the issue of provocation. [9]

The possibility that the applicant may have acted under provocation did not loom large in the trial. Both the prosecution and defence directed almost all of their attention to the question of self-defence. The prosecutor made few specific references to it in his address, his central contention being that the applicant was guilty of premeditated murder and arson. Counsel for the applicant dealt with the matter relatively briefly, submitting to the jury:

"if you are looking, and I am not inviting you to, but if you are looking at the question of provocation then listen carefully to the definition that his Honour will give you either today or tomorrow and I say to you at the very worst to the accused, he was provoked either by the circumstances and what was said to him or a combination of both to such an extent that he lost it. You couldn't say beyond reasonable doubt that an ordinary human being wouldn't have done that in the situation that he found himself in. Nearly choked to death, so he thought, being accused wrongly of committing adultery, and all the other to-ing and fro-ing and the language, that he lost it and the law says in those circumstances if you are satisfied when you hear the legal definition that his Honour gives you, that he was provoked or you can't be satisfied that he was not provoked, then your verdict and you will hear this, I think, today from his Honour, would be manslaughter."[10]

It was on this basis that his Honour dealt with the matter in his charge.

In essence, the proposition has been advanced that some of the words employed by his Honour when instructing the jury on this issue, specifically his use of "might" and "would" created a risk of misunderstanding by them of the objective test applicable when considering whether prosecution had excluded beyond reasonable doubt the possibility that the applicant could have acted under provocation.

The availability of what has from time to time been referred to as the partial defence of provocation is based upon acceptance of the proposition that situations can arise where, in consequence of the perceived provocative behaviour of another, even a person of ordinary firmness of mind and emotional self control might lose that control and commit the otherwise extraordinary act of killing the person considered responsible.

However, the authorities have long recognized that there must be some sensible limits imposed upon the area of operation of this concept which otherwise could provide unjustified protection to a perpetrator where there has been the fatal expression of uncontrolled anger and aggression.

Clearly, it must be confined to situations in which there exists a reasonable possibility that there has been an actual loss of self control. If that possibility is excluded beyond reasonable doubt, there is no need to proceed further.

However, if that is not the case, other questions arise for consideration. Understandably, the law requires the presence of an appropriate relationship between the perceived provocative words or conduct and the resultant killing. What is relevant at this point is the possible effect of the claimed behaviour upon the accused. It is that to which the jury must direct attention. The significance attributed by a person to the words or conduct of another can, of course, depend upon a wide range of factors, including prior relationships and the background against which the behaviour occurs or the words are uttered. Accordingly, the jury must be instructed to look at the actual circumstances in which the behaviour has taken place and the nature of that behaviour viewed from the perspective of the person affected by it.

"[H]aving assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions."[11]

An "ordinary person" for this purpose is defined as:

"a person with powers of self control within the range or limits of what is `ordinary' for a person of the relevant age."[12]

With respect to the manner in which this aspect of the concept is to be communicated to them, this Court stated in Thorpe (No. 2)[13]:

"In Stingel v. R. `could' and `might' were regarded as synonyms. ... In directing a jury, it is acceptable to use `might' rather than `could', preferably saying that `might' in this context means the same thing as `could'. Experience shows that there is less chance of the judge's accidentally transposing `would' and `might' or of the jury's mishearing what the judge says. The corollary of both `could' and `might' is the Crown's establishing that an ordinary person `would not' have lost self-control ..."[14]

It is evident from the following remarks made by his Honour in discussion with counsel prior to the commencement of his charge that he was acutely conscious of both the relevant principles of law and the care which needed to be exercised in the provision of directions to a jury which may need to consider the question of provocation**.**

"The formulation is consistent with - the formulation in the High Court in Masciantonio v. R. per Brennan J, as he then was, Deane, Dawson and Gaudron JJ; consistent with Stingel v. R; consistent with R v. Thorpe (No. 2); and consistent with R v. Curzon per Chernov , J.A., in which the other judges agreed; and R v. Anderson per Callaway , J.A., in whose judgment the other judges agreed. In the formulation of provocation I have stated, quote, the relevant part, 'The provocation also must be such that an ordinary person in the situation of the accused might have lost self-control.' As I said to the jury last time, and I'll say to the jury this time, might, not would, so they understand it's might, not would.[15] Then the formulation, 'The prosecution must prove beyond reasonable doubt that, A or B', and in B, 'The conduct or words of those of the accused would not have caused an ordinary person', et cetera, that is consistent with what was said by the court in Thorpe (No. 2) ..., where the court said, quote: 'When a direction is give in that form it is customary to say that the Crown may discharge the onus by satisfying the jury that an ordinary person 'would not' have lost self-control, or 'would not' have acted as the accused did.' Likewise in Anderson per Callaway J.A., in which the others agreed ..., 'One approach is to direct the jury that the Crown must prove beyond reasonable doubt either that the accused did not lose control or that an ordinary person would not have done so.'"[16]

As an aide memoire and to facilitate the development by the jury of a proper understanding of the principles upon which they were required to address this issue, his Honour provided them with a document described by him as a "Law Sheet". It contained (inter alia) the following passage concerning provocation:

"Provocation is where the actions or words (or both) of the deceased to the accused caused him to lose self-control and act in the way he did while he had lost self-control. The provocation also must be such that an ordinary person in the situation of the accused might have lost self-control and acted in the manner the accused did. The gravity of the provocation is to be assessed having regard to the personal characteristics of the accused. The prosecution must prove beyond reasonable doubt that:

...

(b) the conduct or words (or both) of the deceased would not have caused an ordinary person to form an intention to kill or do really serious injury to the deceased and to act on that intention in the manner the accused did so as to give effect to that intention."

When charging the jury his Honour referred to this sheet, stating:

"Provocation is where the actions or words or both of the deceased to the accused caused the accused to lose self control and act in the way he did while he had lost self control. The provocation also must be such that an ordinary person in the situation of the accused might have lost self control and acted in the manner the accused did."[17] "Now the prosecution must prove beyond reasonable doubt, as you will see at the bottom of the page, either (a) the accused killed the deceased by acts performed when he had not lost his self control as a result of the conduct or words or both of the deceased, or (b) the conduct or words or both of the deceased would not have caused an ordinary person to form an intention to kill or do really serious injury to the deceased and to act on that intention in the manner the accused did so as to give effect to that intention. The prosecution has to prove either of those, (a) or (b), at the bottom of the page for a conviction of murder proving element five, that it was not under provocation beyond reasonable doubt."[18]

There is nothing in the material before this Court which supports the contention that his Honour may have misdirected the jury on this issue. His instructions were formulated in what could appropriately be described as the conventional fashion adopted by judges in this State and they accorded with the law as laid down in the authorities to which he referred. Nor do we consider that any risk existed that, by reason of lack of clarity in the manner in which they were expressed, a degree of confusion or misunderstanding of what the prosecution had to establish may have been present in the minds of members of the jury. Accordingly it is my view that this ground is entirely without substance and must fail.

As I have earlier indicated, when interviewed by the police, the applicant stated that he had attended at the home of the deceased for the sole purpose of speaking to him about his aggressive behaviour. He provided a version of events in which he claimed that he was the victim of a violent attack and had been forced to defend himself, using a knife that by happenstance was within reach on the floor. That version provided not only the foundation but virtually all of the superstructure for his defence at the trial including the defence of provocation. The applicant, I should add, did not give evidence or call any witnesses.

Absent the applicant's statements to the police, there would have been little, if any basis whatsoever, upon which the trial judge would have been justified in putting either the issue of self-defence or that of provocation before the jury. However, once that version was given, before the jury was entitled to return a verdict of guilty of murder against him, they had to be satisfied beyond reasonable doubt that each of these possibilities had been excluded.

The prosecutor made a number of trenchant criticisms of the applicant's version in his address to the jury and there would seem to be little doubt that he invited them to reason in the following fashion:

Knowing that he was guilty of both murder and arson, when interviewed by the police, the applicant supplied a concocted version of events designed to prevent the exposure of his criminal conduct. Unfortunately, from his perspective, he was unaware that his endeavour to destroy incriminating evidence had been unsuccessful. In the face of that evidence his story fell apart. The many implausibilities and his shifts in position as he attempted to accommodate pieces of information that he had not anticipated the police would possess, not only demonstrated the inherent falsity and unrealiability of his story, but emphasized the strength of the evidence against him, and negated the possibility that he may have acted in self-defence, or under provocation.

Although the term "consciousness of guilt' was never used by the prosecutor at any stage, a number of his remarks in his closing address constituted invitations to the jury to conclude that particular statements made to the police emanated from and reflected his appreciation of guilt and his endeavours to escape justice. They included the following:

"the accused's interview is mostly, the Crown says, a work of fiction"[20] "He got himself tied up in knots, as well he might, ladies and gentlemen of the jury, because he lied about those gloves to the police."[21] "He's in a lot of trouble here, ladies and gentlemen of the jury, that's why his lying."[22] "this is an absolute clanger ... You can see the obvious, fundamental, transparent nature of these lies, ladies and gentlemen. Lies generally get caught out. They get caught up in their own lies."[23] "Thirdly, the Crown says the sheer improbability of his account - again like the gloves, the sheer improbability of his account of how this knife-miracle - knife appeared."[24] "This elaborate concoction, I submit o you, about what happened during the fight - and bearing in mind the Crown says quite categorically if there was a fight there wasn't much of that fight, because the scratch on the nose tells a story about that."[25] "... I suppose he means by that he got out of control, but the point about that he is that he told a lie, didn't he, about the number of times that he stabbed the deceased, because when he was asked in the interview, he hadn't at that stage - `how many times did you stab him?' - he didn't know about the autopsy results. And of course he knew that - the Crown says he knew that he burnt the body and tried to burn the house. So he didn't know what Professor Cordner would find on the table. He said five or six times, tops. If you look at question 255 - I'm not going to read out that whole answer, and you probably remember him saying that - and he said it more than nice - five or six times, tops. That's all he stabbed him. But he stabbed him far more than five or six times, tops."[26] "His story abut the tea towel, about the flaming tea towel to search the car keys, is so inherently implausible, in my respectful submission to you that you would reject it immediately."[27] "it was clear from his words and conduct afterwards that he had no intention of confessing, of telling what his involvement was, until he knew the game was up."[28]

The case mounted against the applicant was powerful. If the jury acted on his admissions and the largely unchallenged evidence and discounted this version for whatever reason, the conviction of the applicant would, in my opinion, almost certainly have followed. If, however, they accepted the prosecution's submission that he deliberately lied about what had happened, I consider that, when the other evidence is taken into account, the drawing of the inference by them that he did so to conceal his guilt would have been inevitable. It is apparent from the perusal of the transcript that this was recognized by the trial judge and both counsel.

The applicant was presented with more than one significant problem connected with his interview. There was a history of ill-will between the two men, and the jury may well have been sceptical about his claim to have visited the house in the early hours of the morning to counsel the deceased. The description given by him of a fight in a darkened room in the course of which he chanced upon a knife, similar to one seen in his possession earlier that day and another located in his own home also invited rejection, particularly when regard is had to the evidence concerning the number and placement of the wounds inflicted, the knife, gloves, windcheater and the fire in the premises. Whilst the assertion was advanced on his behalf that the central features of his version were true, it was accepted, as it had to be, that there were discrepancies. As his very experienced counsel appreciated, the prospect that the jury would find that the applicant had deliberately lied had to be faced. Counsel dealt with this aspect in the following passage in his address:

"This is a case where it is suggested by the prosecution that he is lying, that is the accused is lying, and had lied for a considerable period of time, so the prosecution says, and therefore, because he's lied, his version of events should be rejected by you. I think that's the way the prosecutor was putting it to you."[29] "You will watch the interview. I have no doubt if you choose to play it, and observe the accused. That is a task you are quite entitled to do, and take into account his demeanour. I put it to you that his demeanour is one of fear; fear of being involved in a very serious situation, and fear that had taken over him from the time he realised the enormity of the circumstances. That Mr Burdon was dead; that they had been fighting; that he was involved; and true it is for a period of time he maintained, I submit through fear and apprehension, a stance which doesn't help him very much, I suppose. If he had given his version shortly after the events that he gave on 16 December I would perhaps be in a better position, but I am asking you to look at him and to, I submit to you, you still see evidence of that fear and apprehension and that explains, in my submission, to you as a matter of common knowledge people in those situations and in the particular situation that the accused found himself, resort to telling untruths. It is not unknown, but it does not mean in this case, in my submission to you, that what necessarily flows from that is that when he is either telling the version that you have before you, or when you are assessing him, you say to yourselves he must be guilty because he lied."[30]

Counsel did not seek further direction on the matter of lies than that provided by the judge who said:

"Bear in mind, of course, the fact that if a person does tell a lie, if you found a lie was told, that does not mean the person is necessarily guilty of the crime. People can tell lies for all sorts of other reasons than being guilty of a crime. For example, panic, confusion, or fear of being wrongly charged with that offence. Indeed, that is what [counsel] put to you, that the accused, where he did tell lies, was telling them through fear, not because he was guilty of any crime. So bear those matters of human common sense in mind, ladies and gentlemen."[31]

Summarizing the defence submissions, his Honour stated:

"The defence says that you see on the interview a person who was afraid of being wrongly charged with the murder, a person in fear, a person who was answering honestly to the police to the best of his ability, and a person who truthfully told the police that he did in fact go there on that early Saturday morning as a friend of the deceased and out of concern for the children, that he truthfully told the police that he was trying to reason with the deceased, that he truthfully told the police that the deceased came at him without warning and violently, abused him, hit him, tried to throttle him, sat on him, hit him with the stump and threatened him with death, and that the accused genuinely told the police that he acted at all times in lawful self-defence."[32]

In this Court the contention was advanced that these instructions were inadequate in the circumstances. The prosecutor had placed considerable reliance upon a number of statements made by the applicant which, it was asserted, were deliberate lies told to conceal his guilt. In that situation the trial judge was obliged to instruct the jury that there may be other explanations for the applicant's conduct other than his endeavour to escape responsibility for commission of murder and arson, to draw those possible explanations to their attention and to instruct them that they could only use that evidence in that way only if they were satisfied beyond reasonable doubt that there was no innocent explanation available to explain that conduct, counsel submitted.

These contentions were based upon statements of principle made in Edwards v. R. that:

"... not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. ... In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that `if he tells the truth, the truth will convict him'."[33]

In the present case, the statements upon which the prosecution relied were clearly identified and there could have been no uncertainty as to the uses to which the prosecution submitted to the jury that they should be put. The position was in this sense different from that considered in Zoneff where it was stated that:

"There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. ... Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged."[34]

The case was not one, in my view, in which, attributing a modicum of common sense to the jury, the reasonable possibility could be seen to exist that they may have reasoned that, because the applicant lied, his guilt could be inferred from the lies themselves. Rather, it was one in which the prosecution contended that in the face of powerful evidence of guilt, the only escape route open to the applicant was to lie. In his address to the jury, the emphasis was clearly placed by the prosecutor upon that evidence and its impact upon what he referred to as the "smoke and mirror defences" advanced on behalf of the applicant. The position adopted by the defence was equally straightforward. The central features of the applicant's version were true, it was asserted positively, or at least could not be discounted beyond reasonable doubt. If there were discrepancies, uncertainties or even deliberate untruths in his version, they were understandable given the circumstances in which he was placed, and should not result in the rejection of the possibility that he may have acted in self-defence or under provocation.

As I earlier remarked, I consider that it was patently clear from the outset of the proceeding that if the version given by the applicant to the police was rejected as a concoction his conviction was inevitable. The issue of whether the particular statements relied upon by the prosecution as deliberate untruths constituted elements of a concoction or may have been made in fear, panic or confusion arising from the circumstances was clearly before the jury.

The instructions given by his Honour to the jury were adequate when considered against this background. Unsurprisingly, counsel who appeared for the applicant at the trial voiced no concern about them. His Honour dealt fully and appropriately with the onus and standard of proof in a criminal trial. No complaint has been voiced with respect to his treatment of those aspects. The jury, approaching their task responsibly must be taken to have understood that before a conviction of murder could be returned, the possibility that the applicant was acting in self-defence or under provocation had to be excluded beyond reasonable doubt. As a practical proposition, and as all concerned appeared to have understood, this necessitated the exclusion beyond reasonable doubt of the possibility that the central features of the applicant's version to the police could have been true. After all, this issue had provided the focus of the trial. In the particular circumstances of the present matter, the reasonable possibility of a miscarriage of justice arising from the adoption of impermissible reasoning of the kind addressed in Edwards and later cases, cannot be seen to have arisen. In other words, the likelihood that the jury would have based their finding of guilt upon the lies themselves rather than the evidence which exposed the statements as lies, is, I consider, quite unrealistic.

It must be remembered that as Winneke, P. pointed out in Nguyen:

"... the overriding obligation of the trial judge is to give such directions as will ensure, as best he can, that the accused secures a fair trial according to law."[35]

There is nothing which could reasonably give rise to the suggestion that such a trial was not had by the applicant in the present case.

It follows that I consider that the application for leave to appeal against conviction should be refused.

The Application for Leave to Appeal against Sentence

Accepting that the sentence of 17 years' imprisonment imposed on the count of murder was within the range available to the sentencing judge, albeit, it was contended, towards the top of that range, counsel for the applicant argued that its length suggested that his Honour must have taken into account, as aggravating features, matters connected with the setting of a fire in the house. Counsel submitted that in that situation, whilst there were two separate offences committed, the proper exercise of sentencing discretion required total or, at least, very substantial concurrency in the sentences imposed on the two counts. It was not argued that the sentence imposed on count 2 was itself excessive.

His Honour found that in order "to punish [the deceased] for the constellation of [his] resentments"[36] the applicant went to his home at 1.30 in the morning, armed with a knife and with a pair of gloves "to kill or at least cause really grievous injury" to him. He there engaged in a vicious and sustained knife attack on his intended victim, killing him.

When regard is had to all of his Honour's findings, including the absence of any "significant remorse", for what he found was a premeditated attack upon his victim, that sentence was well within the available range.

The learned sentencing judge was clearly conscious of the need to avoid double punishment when determining appropriate sentences for the separate counts as the following passage from his sentencing remarks and his order for substantial concurrency demonstrate:

"On the conviction for murder, the murder was in the home of the deceased - a place which should be a place of safety, and in the early hours when he had been sleeping in his own bedroom. Second, you went there armed with a knife, and with gloves to prevent detention. Third, you viciously attacked the deceased who had no weapon and it was a prolonged and vicious attack. Fourth, you have left his family afflicted and bereft: four young children without their father and with the haunting knowledge that he had been murdered in the dead of night in his own bedroom and his body then burnt. On the conviction for arson, there are a number of significantly exacerbating factors as well. First, the purpose of the arson was to conceal the crime of murder, that is, to defeat the ends of justice, and you actively sought to use it for that purpose four days later when you answered as I have cited in Question 255, in the interview by the Homicide officers on Thursday, 16 December. Next, you lit the fire at the very body of the deceased. Next, it was a very deliberate action on your part whether, as is probable, you returned from the phone box, or even if you did not. The autopsy conducted by Professor Cordner revealed that the deceased was dead when the fire started, as there was no smoke or soot in his lungs and airways and no carbon monoxide in his blood. Next, the terrible consequences to the body of the deceased will always live with his wife, his mother, and his children. There was also significant financial harm caused to his wife and family. On the other hand, no person was living in the house when you lit the fire. The risk to other persons and other property was not that great, but the consequences of arson, as we all know, are unpredictable and, indeed, the brave actions of two young men, Mr Hetherington and Mr Maclean, who put themselves at risk, and the brave actions of the volunteer fire fighters from Wahgunyah and from Rutherglen, demonstrate the dangers of arson."[37]

In this context reference should also be made to an exchange which took place between his Honour and counsel for the applicant in the course of the plea hearing:

"COUNSEL: ... [T]here are two separate offences, Your Honour. I don't think it matters from the sentencing point of view whether there was two separate offences or an aggravation and a murder. The end result is you probably will cumulate some of the sentence of the arson on the murder. HIS HONOUR: Some but not all. COUNSEL: And therefore - - - HIS HONOUR: Because Count No.2 would not have occurred but for Count No.l, and they were in the same time and place, effectively. So you would make them concurrent up to a degree. On the other hand, Count No.2 was designed, on the jury's verdict, to defeat the ends of justice on Count No.l, and of course had some very unhappy consequences, including the body being burnt and so on. COUNSEL: Yes. HIS HONOUR: So you would cumulate some limited amount of Count No.2 on Count 1 but not wholly so. Unless you want to make a submission about that. COUNSEL: No, I think that's a fair description, if I may, of the sentencing process in respect of both counts."[38]

I do not consider that his Honour fell into error with respect to the individual sentences fixed, the order for partial cumulation made by him or the total effective sentence at which he arrived.

Accordingly I would also refuse this application for leave to appeal.

I have had the advantage of reading the judgment of Vincent, J.A. in draft and I adopt his Honour's outline of the background to this appeal and his summary of the competing contentions of the prosecutor and defence counsel, although I will add some comments of my own as to the competing contentions and highlight some parts of the evidence in the course of my discussion of the issues. I agree with his Honour's conclusion that appeal ground 1 has not been made out, and with his Honour's reasons for that conclusion. In my judgment in the case of R. v. Ibrahim[39], which was heard and decided at about the same time as the present case and by a Court identically constituted, I dealt in some detail with similar issues to those raised by ground 2. I wish to state my own reasons for agreeing with Vincent, J.A. that ground 2 has not been made out so that I might conveniently adopt some of the analysis from my judgment in Ibrahim.

1 57 For the reasons given by Vincent, J.A. I agree that the application for leave to appeal against sentence should be dismissed.

Ground 2: Whether an Edwards[40] direction was required.

In this case the record of interview contained a number of critical statements and/or admissions, some of the most significant being:

* That the applicant had entered the home of the deceased man, Shane Burdon, at 1.30 am on the day of his death. * About two to three weeks earlier he had learned from his girlfriend, Anne Neihus, a friend of the separated wife of the deceased, that the deceased had been physically violent towards his wife and her sons. * The applicant attended at the home of the deceased at that hour because he wanted to talk to him, as a friend, and advise him to stop what he was doing to his wife and children. * The applicant felt that, although Burdon was not a great friend of his, it was sort of his place to point out to Burdon why he should desist from abusing his wife and children because the applicant had been an abused child himself. * The applicant had been drinking until late that evening and had a fair amount to drink. He wouldn't say he was "blind" but "I was a bit pissed". He then went home, and was involved in assisting the birth of a foal, and then decided to visit Burdon. * Having driven towards Burdon's home he parked his car at the opposite end of the street, rather than outside the home. He then walked to the home across a paddock and entered the house through the rear door. He parked at that location because his vehicle was unregistered and he did not want to be seen driving it. * When he entered the house and called out Burdon said "what the fuck do you want?". Burdon emerged from his bedroom in his underpants.

At about 1.30am passers-by had heard two voices yelling and shouting, and sounds of crashing and banging[41] coming from the house, and Burdon was heard to say loudly "what the fuck are you doing?".

In his account to police the applicant described endeavouring, at the outset, and in a friendly way, to point out the errors of Burdon in his treatment of his family. Burdon said "Its got nothing to do with fuckin' you" and, after further abuse, became angry and punched the applicant on the nose. The applicant said that when that happened he "got a little bit upset with that as well". Burdon then charged the applicant and a wild fight ensued, which moved from the lounge room to the bedroom, with the applicant saying to Burdon that he should stop fighting, that all the applicant wanted was that he stop hurting his family and that he did not want to hurt Burdon. During the struggle they rolled off the bed on to the bedroom floor, which was in darkness after the lamp broke. Burdon was getting the better of the applicant who was fearful and was being choked and then in the darkness he reached overhead behind him and felt an object which proved to be a knife, which he then held in front of him. Burdon said the applicant would be dead before he got to use the knife, and thus in self-defence the applicant stabbed Burdon in the shoulder. He said to Burdon "Now come on, fuckin' pull up and get off me" but Burdon tightened his grip, so the appellant pushed the knife into him and heard Burdon scream. Burdon, who was sitting on the applicant, got angrier and so the applicant stabbed him again and called on Burdon to stop what he was doing. Burdon got off him but armed himself with a cricket stump, and struck the applicant on the arm, so the applicant stabbed him twice more. In all, he stabbed Burdon five, or "six times tops".

The evidence disclosed that Burdon, an older man, had restricted physical capacity due to cardiomyopathy. He had remonstrated with the applicant on one recent occasion because he disapproved of the manner in which the applicant had cared for one of Burdon's children when the child was in the applicant's custody, and he had accused the applicant of having an affair with Burdon's estranged wife. Burdon had called the applicant "a little dog" only a week before his death. The post-mortem examination disclosed that Burdon had received 42 stab wounds, and in addition had been struck to the head with a heavy object on more than one occasion. The only injury suffered by the applicant had been a small cut to his nose and a grazed fist.

As is immediately apparent, the applicant had admitted causing the death of the deceased in circumstances which, when coupled with the medical evidence, pointed to homicide. No one saw what happened at the house. The only evidence that the killing had been done in self-defence was that provided by the applicant in his record of interview. If his account was not credible then there was no evidence to support that defence and the admissions in the record of interview, coupled with the medical and forensic evidence, and the evidence of a fight having been heard, would prove that the death must have been murder.

During the police interview the applicant had shifted position many times, as new information was presented to him to confront the version of events he had given. The gloves were identified by a witness, Wayne Potter, who lived at the farm with the applicant, as being a pair that came from the farm where the applicant also lived. They and the applicant's windcheater were both stained with Burdon's blood and both gloves and windcheater had been left on the verandah of Burdon's house, with the intention that they be consumed by the fire, so the Crown alleged. The applicant initially volunteered that Potter had such a pair of gloves as police described to him being found at Burdon's house. He agreed that he had worn them to Burdon's house and that he must have grabbed them from the farm prior to going there. He said he was wearing shorts that night and could not explain why he would have worn gloves. He subsequently changed position and suggested that he might have got the gloves from Burdon's house but could not explain why he would have done so. The fact that the gloves were covered in Burdon's blood and also that blood smears from the gloves had been found on the laundry door and on a number of light switches in Burdon's house suggested that they had been worn during and after the incident between the two men.

The applicant denied bringing the knife to the premises. The bloodstained knife had been located on a path which ran between the western and eastern ends of the street where Burdon lived. The applicant had parked his car at the eastern end of the street and agreed he would have traversed the path as he returned to his car from Burdon's house which was at the western end of the street. It was of a type identical to a knife which had been at the farm and very similar to that he had been seen holding earlier that night. He said that after he had used the knife in self-defence, having found it at Burdon's house, he put it in his pocket and it must have dropped out of his pocket as he ran away from that house.

If the jury rejected as implausible his account that he had located a knife in the dark in the house when being attacked then they would inevitably conclude that the knife had been brought to the house by the applicant. If his own exculpatory account was discredited and it was established that the applicant had entered the house armed with a knife, and wearing gloves, without any plausible innocent explanation for so acting, there was abundant evidence on which he could be convicted of murder.

It was necessary for the Crown to discredit the account of self-defence given by the applicant. To discredit it, the prosecutor characterised that account as being an elaborate concoction, a work of fiction, lies from beginning to end. In the course of his address the prosecutor identified a number of statements which constituted specific lies. Some of the lies were said to be changes which he made to his position when, having given explanations for his conduct as to specific matters put to him by police, he discovered that they had information which contradicted his account, so he shifted position to accommodate the new information. Some of his statements were said to be lies because of the "sheer improbability" that they could be true. An example of the latter was the account of leaning back in the dark and finding a knife with which to defend himself. Another was his contention that there had been a wild fight with himself as the victim of the attack, when the only injury he sustained was a scratch on his nose and some lacerations to his fist. A third was said to be the inherent implausibility of his account as to how a fire had started in the house, accidentally.

Additionally, the prosecutor identified the behaviour of the applicant in his initial dealings with police as being lies. Included in this was his delivery to the police of clothing which he said he had been wearing on the night when the truth was that he had buried the clothes he had been wearing. The prosecutor said he was lying when he told the police initially that he had suffered a memory loss and that he could not remember being at Burdon's house and then, later, when he said that he was not 100% sure that he did it (i.e. the killing). He was lying in the interview, the prosecutor submitted, when in response to difficult questions he maintained that he could not remember things. He was lying when he said that he stabbed Burdon, at most, six times. The prosecutor said that he did not know that part of Burdon's body had been spared the flames and that an autopsy had disclosed how many times he had been stabbed. He was confronted with that information during the interview, but by then he had volunteered that he had stabbed Burdon only six times, at most.

The prosecutor urged the jury to identify the "reality in this case, as opposed to the smoke and mirrors and distractions and the distortions". At no time did he use the expression "consciousness of guilt", but rather used expressions which suggested that he was attacking the credibility of the exculpatory account given in the record of interview. He spoke of "the sheer improbability of his account" about the knife; he said that his explanation of why he set fire to a tea towel[42] and how the fire had started in the house[43] "simply defies belief" and was "so inherently implausible"; he spoke of the "unlikelihood" of there having been a murderous attack on the applicant having regard to the respective injuries suffered; he said of the detailed account of the words spoke between the applicant and Burdon throughout the evening as "an amazing, incredible and just simply quite unbelievable account of what occurred during this so-called murderous attack" and said it was an "elaborate concoction".

In my opinion, the central thrust of the prosecutor's address was that the credibility of the account given to police, insofar as it was exculpatory, should be rejected by the jury, as being an implausible concoction, having regard to the admitted and proven facts and the sheer implausibility of the account. Furthermore, the trial was conducted on all sides on that basis. In his address to the jury defence counsel said that the prosecutor had launched against the applicant an "attack upon his credibility", and had said, in effect, "Look, he's lied from day one and you just can't accept anything he says, and therefore its just cold-blooded murder".

On appeal, however, it was argued that the prosecutor had invited the jury to treat lies as demonstrating a consciousness of guilt, so that if they were satisfied that the applicant had told any of the lies which the prosecutor had identified as being significant then that of itself would prove the applicant's guilt of murder. If lies were used in that way then, so it was submitted, the jurors might not appreciate the dangers in drawing conclusions of guilt from such lies.

The question in this case is whether in the way lies and post-offence conduct were argued before the jury there was a real risk that in deciding the case the jury would make use of lies and conduct to conclude guilt by virtue of an impermissible process of reasoning. If there had been such a risk then unless the judge had given a direction to the jury which removed the risk a miscarriage of justice would have occurred[44].

For reasons which I have more fully elaborated in Ibrahim[45], and which are applicable to the present case also, in my opinion this case was being presented to the jury, and would have been so understood, as being a case of murder unless the jury had a reasonable doubt as to self-defence. Since the only evidence of self-defence was that contained in the record of interview it followed that if the credibility of that evidence was rejected the verdict would be guilty of murder. The jury were invited to reject the account because its internal lies and its implausibility defied credulity. If they rejected it then it would follow that many of the lies had been told in consciousness of guilt, but the jury were not invited to find guilt by using any lie as proof of guilt in itself. As the Crown presented the case, it did not matter what motivated the lies, so long as the account was shown to lack credibility.

Although the prosecutor did not use the expression "consciousness of guilt" with respect to lies, I accept, however, that notwithstanding his care in that regard the jury might well have regarded some or even many of the lies, if so found, as having been told by the applicant because he knew he was guilty of murder, and as being told in order to set up a false defence of self-defence[46]. That does not mean that the jury would have arrived at a verdict of guilty of murder by the short cut of reasoning that he had told a lie therefore he must be guilty. In my view, the jury would have understood that the issue was "Is his account credible?" In Dhanhoa v. The Queen Gleeson, C.J. and Hayne, J. held:

"It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case."[47]

In the joint judgment in Zoneff v. The Queen their Honours held:

"A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms: `You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.' A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence."[48]

If, however, there remained any risk that the jury might use the lies and other post-offence conduct on this case to arrive at a verdict of guilty of murder by impermissible reasoning, then, in my opinion, the direction which was given, and which is set out in the judgment of Vincent, J.A.[49], was more than adequate in the circumstances of the case to remove that danger. In the circumstances of this case, there was no requirement for a full Edwards direction to be given in order to remove such risk, if any, as might have existed of impermissible reasoning being indulged by the jury.

I mention, briefly, one further argument advanced by Mr Schwartz. Counsel submitted that as to the terms of a consciousness of guilt direction the jury should

have been warned that they had to exclude the reasonable possibility that there might have been a consciousness of guilt of the crime of manslaughter rather than murder. Had a direction been required the judge would not have been obliged to give a direction in terms distinguishing as between murder and manslaughter_: see R. v. Wooley_[50]; R. v. Rice[51].

In concluding my remarks as to this ground, I express my agreement with the statements in the judgment of Ashley, A.J.A. as to the inappropriateness of the situation where at trial the accused through his or her counsel seeks not to have any direction given concerning consciousness of guilt, because to do so would highlight damaging evidence and reduce the prospects of acquittal, but then on appeal it is argued, usually through different counsel, that a direction ought to have been given. Whilst the courts would be slow to hold an accused bound by a decision taken by counsel at trial which produced a miscarriage of justice, the fact that such a decision was weighed and taken by competent counsel is a very strong indicator against the proposition that a miscarriage of justice had in fact occurred.

In my opinion, for the reasons stated above, ground 2 is not made out.

I have had the advantage of reading the Reasons of Vincent, J.A. in draft and agree with his Honour that the applications for leave to appeal against conviction and sentence should be dismissed. I agree with his Honour's reasons in respect of Ground 1 of the conviction application, and in respect of the sentence application. Concerning Ground 2 of the conviction application, however, my approach - although it leads to the conclusion that an Edwards[52] direction was not required- departs in one respect from his Honour's reasoning. My approach is essentially that

adopted by Eames, J.A., whose judgment in draft I have also had the advantage of reading.

The realisation that the trial judge should have given "an `Edwards' type direction" dawned upon the applicant's advisers very late in the piece. It was not apparent to the applicant's counsel at any stage of the trial, a trial which was the third occasion on which the matter had come before the Court. It was not apparent when the notice of application for leave to appeal against conviction was prepared, soon after trial and sentence. It became apparent, it seems, nearly two years after the applicant was convicted and less than two weeks before his application for leave to appeal against conviction came on for hearing; apparent to counsel who had not appeared for the applicant at trial.

The sequence of events is painfully familiar. It illustrates the gulf between defence at trial and prosecution of an appeal. In the former the emphasis is upon securing an acquittal. In the latter, the applicant, generally speaking, has at best the chance of obtaining a fresh trial. At trial, most often, the last thing that an accused person is likely to want is that the trial judge, with the weight of his or her authority, should identify alleged lies in the course of giving a full Edwards direction. The present case is a case in point. On appeal, a judge's failure to give such a direction is attacked; and it is submitted that the applicant lost a fair chance of acquittal by reason of that failure. In this context "failure" means, often, that the trial judge gave no direction because after discussion with counsel it was agreed that no such direction should be given; or that no direction was given because none was sought, either at the outset or by exception. Sometimes, again, the trial judge is attacked for giving an Edwards direction in respect of a particular lie in circumstances where, it is claimed, he or she should not have done so.

Circumstances such as I have described give particular focus to criticism of a legal system which permits a convicted person to agitate, on appeal, an issue not raised at trial. Such criticism yields, however, to the critical consideration that a conviction should not be permitted to stand if a defect in the trial process led to a miscarriage of justice. Further, the sting of any criticism is ameliorated by the fact that, in considering the merits of a matter newly raised, the way in which the trial was conducted is by no means irrelevant. [53]

Where, as here, it is contended on appeal that an appropriately tailored Edwards direction was required, the essence of the contention is that, absent such a direction, there is a real danger or risk that the jury reasoned that the accused person's lies (or other post offence conduct) bespoke consciousness of guilt of the offences charged - that is, were in the nature of admissions against interest. Such a danger or risk will particularly exist if the prosecutor invited the jury to reason in such a way; but it is not necessarily confined to that situation.

In the present case, the applicant ultimately admitted killing the deceased at the latter's home in the early hours of the morning of 11 December 1999. There was much evidence which suggested that the killing was a murder: the applicant entered the darkened home in the middle of the night of a person against whom he might be thought to have had a grudge. He wore gloves, probably at the time of his arrival, certainly at the time of the killing. There was evidence suggesting that he went to the deceased's home armed with the knife with which he inflicted the fatal wounds. The extent of the attack upon the deceased was great. The applicant himself was virtually uninjured. He, the applicant, set the house on fire after the killing; and he jettisoned the bloodied gloves and a windcheater which he had been wearing on the front porch of the premises - premises which might have been expected to, but did not in fact, burn down.

In a record of interview made five days after the killing, however, the applicant claimed, in effect, that he had killed the deceased in self defence; and that he had not deliberately set fire to the house. It was inevitable that the Crown would negate the reasonable possibility that the applicant acted in self-defence (or under provocation - which was also raised at trial), and that the jury would convict him of murder and arson, unless it accepted his out of court exculpatory account of the circumstances leading up to and culminating in the death of the deceased and then the fire. For the other evidence strongly pointed to murder and arson; and there was a virtual absence of any evidence which could give credence to the applicant's account.

It was sensibly necessary, in the circumstances, for the prosecutor to argue that the applicant's account was, in its essential detail, a concoction, a web of lies - lies in the sense of deliberate untruths. It would have been quite unrealistic for the prosecutor to have submitted that the account, so far as it was exculpatory, should be rejected not because the applicant had been deliberately untruthful, but because he had been confused, mistaken, or fearful.

Descending to detail, the prosecutor argued, explicitly or by necessary implication, that it was a lie that the applicant had parked his car some distance from the home because he was afraid that otherwise his unregistered vehicle would be detected, or that he might be identified as having driven with an elevated blood alcohol level. It was a lie that he had gone into the deceased's darkened home in the middle of the night to counsel him. It was a lie insofar as the applicant said that he had not worn the gloves to the deceased's home. It was a lie that the deceased had attacked him. The applicant's account of a struggle in the course of which extensive dialogue had taken place between the two men was a lie. It was a lie that in the course of a struggle and in the dark he, the applicant, had reached out and chanced to find a knife lying on the floor; a knife which he identified because, as a matter of chance, he first touched its blade. It was a lie that he only recalled stabbing the deceased 5 - 6 times. It was a lie that he set fire to the house when he accidentally dropped a tea towel which he had been using to light his way after the alleged struggle had ended.

Neither from the defence side was there any equivocation. The applicant's account, it was submitted, was essentially the truth. Any inconsistencies were the product of fear or an understandable uncertainty concerning the detail of events.

There is, then, not the slightest doubt that the jury was apprised of the significant dispute between the Crown and the accused: had the Crown proved beyond reasonable doubt that the defences to the count of murder, which rested almost exclusively on acceptance of the accused's account of events, were not made out; and should the applicant's account concerning the provenance of the fire also be rejected?

As I understand his Honour's reasons, Vincent, J.A. has concluded, looking to the substance of the prosecutor's closing address, that the jury was invited to conclude that the applicant's exculpatory account was replete with particular, identified lies, and to infer that such lies were told out of consciousness of guilt. On such a footing, his Honour has demonstrated that in the particular circumstances of the case no Edwards direction was required.

In my opinion, however, the real thrust of the prosecutor's final address, set in context, was simply that the applicant's exculpatory account should be rejected as a concoction at the heart of which was a series of lies; and that, once the exculpatory account was rejected, the body of evidence compelled convictions for murder and arson. That was the prosecutor's line of argument, in my view, although on a few occasions he used language approximating consciousness of guilt.

I do not see this as a case, then, where the prosecutor advanced, in connection with the appellant's exculpatory account made 5 days after the killing and fire, a consciousness of guilt argument. Neither, I consider, was there any risk that the jury would have understood such an argument to have been advanced. Courts traditionally, and rightly, attribute commonsense to juries. It is, I consider, really an over-conceptualisation, founded in the fertile imagination of lawyers operating in rarefied atmosphere of an appeal court, to imagine that the jury would have understood that it was being invited to conclude that the applicant had lied, and that he had done so out of consciousness of guilt, for which reason his lies stood as evidence of guilt.

Further again, I consider there is no risk that the jury in fact reasoned in an impermissible way. Once it rejected the applicant's account of the events proximate to the time of the killing and the fire, and realistically it would have done so because it considered that the exculpatory aspects of his account consisted of a series of lies, the body of evidence which remained pointed powerfully to murder; and arson.

It might be argued - at least as tending against my conclusions that there was no risk that the jury understood the prosecutor to have advanced a consciousness of guilt argument, and in any event that there is no risk that the jury reasoned by way of consciousness of guilt - that the applicant's lies were not restricted to lies about events proximate to the killing and the fire; for by his own later account the applicant admitted that he had told an untruth when he said on the day after the killing, in effect, that he knew nothing about the matter. Further, his assertion on 12 December of memory loss, and how he came to have a scratches on his nose, was or at least might have been considered untruthful. The prosecutor did submit the applicant had told untruths in that connection. The untruthful statements made on 12 December, however, and other conduct of the applicant in the 24 hours after the critical events, were in large measure peripheral to the issue which dominated the trial - that is, whether the Crown had negated the defences emanating from the applicant's record of interview on 16 December.

In all the circumstances, I cannot accept that the conclusions which I earlier expressed are put in doubt. They are conclusions, it may be added, which are wholly compatible with the way in which the trial was conducted, in particular the way in which it was conducted by the applicant's then counsel. It may also be added that the jury, once having rejected the applicant's exculpatory account because it considered that account to contain a string of critical lies, must be assumed to have accepted and acted upon the direction given to them by the learned trial judge that lies may be told for many reasons and do not necessarily bespeak guilt. That direction removed the prospect of another type of impermissible reasoning.

If the view which I prefer of the prosecutor's closing address, the jury's understanding of it, and the jury's reasoning process be correct, there was no occasion for giving an Edwards direction. But if the view of the prosecutor's address taken by Vincent, J.A. be preferable, then it follows from what I have said that I agree with his Honour that no such direction was required.

[1] The crime of murder is punishable by an imposition of a maximum term of imprisonment for life. Arson is punishable by a maximum term of imprisonment of 15 years.

[2] This refers to the judgment of the High Court in Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193 in which the manner in which a trial judge should address the issue of lies as demonstrating consciousness of guilt was considered.

[9] Provocation, as a defence, was relevant only to the charge of murder.

[11] Masciantonio v. R. [1995] HCA 67; (1994) 183 C.L.R. 58 at 67 per Brennan, Deane, Dawson and Gaudron, JJ.

[12] Stingel v. R. [1990] HCA 61; (1990) 171 C.L.R. 312 at 332 per Mason, C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh, JJ.

[15] In argument it was suggested that his Honour here fell into error confusing would and could. It is apparent that this was not the case and that he was emphasizing his appreciation of the necessity to ensure that the onus and burden of proof were clearly stated.

[19] This ground raises issues affecting both counts on the presentment. No suggestion was advanced in argument of any possible differences in the impact or relevance of the contentions made on behalf of the applicant between them. As it does not appear to me that any distinction can be made relevant to the consideration of the ground, the convictions for murder and arson have not been addressed separately.

[33] [1993] HCA 63; (1993) 178 C.L.R. 193 at 209 per Deane, Dawson and Gaudron, JJ.

[34] (2000) 200 C.L.R. 234 at 244 per Gleeson, C.J., Gaudron, Gummow and Callinan, JJ.

[39] See R. v. Ibrahim [2003] VSCA 180.

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

[42] Because in the dark he could not find his car keys. (Evidence from an electrician showed that all household lights were functional save for one in the bedroom. Several of the light switches were smeared with blood, consistent with them having been used by a person wearing gloves).

[43] Having lit the towel from an electric stove - although a torch sat nearby - as he moved through the house he was forced to drop the lighted taper and a fire commenced.

[44] I adopt my discussion in Ibrahim, at [33]-[56] and [57]-[99], as to what constitutes impermissible reasoning and the necessity to demonstrate a "real risk" that the jury would indulge in such reasoning.

[46] Defence counsel did not address the jury, at all, as to provocation, although the defence was left open and the judge gave a direction on it. It was plain that the case was conducted on the realistic basis that the defence of provocation could only arise if the jury accepted the account given by the accused in support of self-defence. Thus, if there was no credibility in the account advanced for self-defence there was equally no credible account to support provocation.

[48] Zoneff (2000) 200 C.L.R. 234 at [23]-[24].

[50] (1989) 42 A.Crim.R. 418, at 423-424; see too R. v. Ibrahim, at fn. 30.

[52] Edwards v. The Queen [1993] HCA 63; (1983) 178 C.L.R. 193.

[53] See, e.g., Dhanhoa v. The Queen [2003] HCA 40 at [63] per McHugh and Gummow, JJ.

CRIMINAL LAW - Conviction - Murder - Arson - Whether trial judge's use of words "might" and "would" in defining provocation created a risk of misunderstanding by the jury - Parameters of the law of provocation - Whether trial judge erred in failing to give jury an "Edwards" type direction - No miscarriage of justice of the kind addressed in Edwards v. R [1993] HCA 63; (1993) 178 C.L.R. 193 said to arise - Application dismissed.

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