Steer v R

Court of Criminal Appeal (NSW)|2008-10-30|Before: McClellan CJ, Simpson J, McCallum J, Whealy J, Clellan CJ, Callum J

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 64; McCallum J at 76

CATCHWORDS: CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - prejudicial evidence - whether evidence of armed robbery and proposed flight should have been admitted as evidence of accused's consciousnes of guilt for murder - whether the proviso should be applied - s 137 Evidence Act 1995 - s 6(1) Criminal Appeal Act 1912 - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - misdirection and non-misdirection - whether trial judge misdirected jury as to how evidence of armed robbery and proposed flight could be used as evidence of consciousness of guilt - whether the proviso should be applied - s 6(1) Criminal Appeal act 1912 - CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - prejudicial evidence - whether admission of evidence that accused owned hunting knives should have been admitted - whether the proviso should be applied - s 137 Evidence Act 1995 - s 6(1) Criminal Appeal Act 1912

Can v R [2007] NSWCCA 176 Edwards v The Queen [1993] HCA 63; 178 CLR 193 Gonzales v R [2007] NSWCCA 321; (2007) 178 A Crim R 232 House v The King (1936) 55 CLR 499 Markby v The Queen (1978) 140 CLR 108 CASES CITED : Quinlan v R [2006] NSWCCA 284; (2006) 164 A Crim R 106 R v Cook [2004] NSWCCA 52 R v Sievers [2004] NSWCCA 463 R v SJRC [2007] NSWCCA 142 Sievers v The Queen [2005] HCA Trans 663 Smale v R [2007] NSWCCA 328 Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195

PARTIES: Brian James Steer (appellant) The Crown

COUNSEL: C T Loukas (Appellant) D Arnott SC (Crown)

SOLICITORS: Peter Murphy, Solicitor (Appellant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT DATE OF DECISION: 17 November 2006

IN THE COURT OF CRIMINAL APPEAL 2006/3106

McCLELLAN CJ at CL SIMPSON J McCALLUM J

TUESDAY 9 DECEMBER 2008 STEER, Brian James v R Judgment 1 McCLELLAN CJ at CL: The appellant was convicted of the murder of Warren Dickson on 13 February 2005. He appeals that conviction. There are three grounds of appeal, two relating to the admission of evidence. The other ground raises one aspect of the trial judge's summing up for consideration.

Relevant matters 2 The authorities became aware that Mr Dickson had died after police and fire brigade officers came to the house where he lived at 90 Commerce Street, Taree in response to an emergency call. In the main bedroom of the house they found the burned remains of Mr Dickson. His throat had been cut twice and a post mortem examination confirmed that his trachea and carotid artery had been severed. Several days later on 18 February 2005 the appellant robbed the Wauchope branch of the ANZ Bank and made away with approximately $23,000. 3 The Crown case was that the appellant, jealous that his former partner Nicole Deluca had rejected him in favour of the deceased, went to the deceased's house late at night and broke in through a kitchen window. There was evidence that during the previous week the appellant had been following Ms Deluca and had found out where the deceased lived. On the Friday night before the offence, which occurred on a Sunday, the appellant had followed Ms Deluca and the deceased home from the cinema. On the Saturday he again returned to the house, saw Ms Deluca's car and looked through the window into the bedroom. 4 The evidence was that the appellant had gone to the deceased's house wearing gloves and a balaclava. Although the appellant said he was wearing thongs it was the Crown case that he was wearing sneakers. The Crown alleged that he was carrying an iron bar or crowbar, although the appellant claimed that he was carrying a piece of "reo." He "shimmied" up the pipe outside the rear kitchen window, broke the glass and climbed in. It was the Crown case that he intended to cause serious injury to the deceased. The appellant said that he had entered via the kitchen window because the deceased had not answered his door on a previous occasion. 5 The deceased was apparently awakened by the noise and confronted the appellant in the kitchen. Significant pools of blood were found in the kitchen and it is apparent that the deceased was killed at this location. A post-mortem was carried out which indicated that the deceased suffered two fatal wounds to his neck: one a slash wound and the other a stab wound. Death would have followed quickly as a result of either wound. The weapon used to make the wounds was never found. 6 After the deceased had died the appellant dragged him through the house to the main bedroom. The appellant, using an accelerant, set the house alight and fled the scene. The seat of the fire was identified as the main bedroom. 7 The appellant met Ms Deluca later on the morning of 14 February. He feigned ignorance of the events. When spoken to by the police he denied any involvement in the crime and claimed, contrary to the evidence of his daughter, Kimberley, that he was home all night. He denied knowing the deceased's name or where he lived. He said to the police "Lucky I didn't know the guy or I'd be the prime suspect." On 16 February 2005 the police inspected the appellant's house and car. During the course of the search, Det Buining apparently detected blood on some portion of the appellant's car. He called over another police officer and informed him of his discovery. The evidence indicates that the appellant's demeanour, which had previously been calm, suddenly changed. 8 Soon after the appellant went and retrieved his children from school intending to take them to their mother's home in Ipswich, Queensland. On his way to Queensland he visited a friend, Elizabeth Mitchell, who at the time had friends over for a barbecue. One of the friends was Jeremy Moy. 9 When the appellant was alone with Ms Mitchell he told her of the killing. Ms Mitchell said that in a "smug" fashion with "no remorse for what he had done" he told her that he had slit the deceased's throat. He said they had struggled; that the deceased had a metal pole and that "Warren [the deceased] was getting it over him when they were scuffling." The appellant then showed her a bum bag from which he removed a black hand gun stating that he was going to use it for armed robberies; and that he was going to rob a bank to get money, "about a hundred grand" - so that he could hide away. He also told her that when he had left her place he was going to take his children for a drive to their mother's house in Queensland and tell them what he had done. 10 It was the Crown case that whilst the appellant was at Ms Mitchell's house he removed number plates from a Nissan Skyline motor vehicle and put them onto his own car. 11 The appellant arrived in Ipswich the following morning and had a conversation with his former wife, Ms Matthews. He told her "I did it, I killed him." She asked him if there was any other way he could have handled it and he replied "No. I'm sick of being walked on and shitted on. The things I'm going to have to do to survive." He also told his former wife that the police had found blood on his car and indicated that this would mean "he was stuffed" or words to that effect. He told her "the bastard deserved it." She said that the appellant left her house because he believed that he had seen a detective parked out the front. He returned to New South Wales. 12 The appellant's daughter, Kimberley who was then aged 12 years, was interviewed by the police on ERISP on 18 February 2005. The interview was played to the jury. Kimberley said that during the trip to Ipswich her father told her that he had killed the deceased "because he took his girlfriend away from him" and "she was cheating on him." She said that he told her that when he was struggling with the deceased, the deceased "was trying to get the crowbar off him." She stated on the ERISP "and Dad was out, coming, just coming through the window or something and then he hit, he, Dad hit the, Wazza over the head with the crowbar, crowbar and split his head. And then he was, like, in shock or something. And then he pinned him to the ground … I think, then I think that's when he killed him. But he didn't say what with." 13 On 18 February the appellant robbed the bank at Wauchope. He said that he used a replica pistol. The teller who was removing money from teller boxes said to him: "Isn't there any other way? Are you sure you want to go through with this?" 14 The appellant replied: "Once they find out what I did last week, that's it. I need the money." 15 Prior to the bank robbery the appellant abandoned his car in the State Forest at Wauchope. After the robbery he bought a cheap car which broke down. He telephoned Ms Kelly Barkwill for help and she came and picked him up and took him back to her house. After they had arrived they went into a room together and the appellant spread out a significant amount of cash and three black handguns on the bed. 16 The appellant told Ms Barkwill of the killing of the deceased. He said that when the deceased had realised who he was a struggle ensued and he had hit the deceased a few times with a steel bar. He said that he then grabbed the knife from the knife block and pinned the deceased down and cut his throat. He told her of the Wauchope bank robbery and said that he intended to rob a further two banks and needed $60,000 to lay low for a while. She said that she last saw the appellant on 19 February 2005 attempting to break into a car yard. 17 The appellant later borrowed his mother's car. He had not spoken to her but left a note apologising for taking the vehicle in which he said inter alia "All I know is, that the thought of spending the rest of my life in prison does not appeal to me." He travelled to Sydney, later went to Bathurst and then to Singleton. 18 On 20 February 2005 the appellant sent an email to Ms Deluca. He gave a version of the events which included a statement that the deceased had come at him with a knife. He also sent an email to his father in which he said that the deceased "came at me with a knife. It became a life and death struggle." 19 The Crown emphasised at the trial that it was not until 20 February that the appellant's account of the relevant events included the fact that the deceased had a knife. At his trial the appellant claimed that when he had called into Ms Mitchell's house he had told Mr Jeremy Moy about the struggle and that the deceased had pulled a knife on him. Mr Moy denied that this conversation had occurred. 20 On 22 February 2005 the appellant approached a solicitor at Wingham. On 23 February he was picked up from Singleton by Mr McQueeney who was a friend of the solicitor. On their way to the solicitor's office the appellant requested that they make a detour to the go-kart track in Wingham. Mr McQueeney left the appellant there with another person but before he drove off observed the appellant take his backpack and a plastic bag into a canteen which he had entered using a key. Police later discovered in the canteen, secreted behind a fridge, the backpack and a black case. In the case was a replica pistol which the teller at the ANZ Bank in Wauchope identified as the gun held by the person who had robbed the bank. 21 The backpack contained $11,700 in cash together with other items belonging to the appellant. The appellant said that he hid these items because he did not want the police, when he turned himself in, to take unnecessary action with other people around.

The defence case 22 The appellant gave evidence at his trial. He claimed that a steel bar which he used to break the window at the deceased's premises happened to be lying on the top of a garden chair. When he climbed in the window he said the light turned on and the deceased came at him with a knife. The appellant then described a violent struggle. This evidence was not supported by the state of the premises when inspected by the police. The appellant said that in the course of the struggle the deceased lost his grip on his knife and the appellant lost his grip on his bar. The appellant said he was punched many times and received a powerful blow to his head. He said the deceased stood over him striking him numerous times over the head and back as he lay on the floor. The appellant said he grabbed the knife which was on the floor, and swung it at the deceased defensively as he came at the appellant with the steel bar. He said that after setting the house alight he left with the knife and steel bar in a plastic bag which he disposed of at a dump site. 23 The appellant denied telling his daughter, Kimberley, that he had hit the deceased over the head with an iron bar. When cross-examined he agreed that he had not told his children that he had killed a man in order to save his own life. 24 In relation to the bank robbery he claimed: "I was thinking about how I can use the replica and put meself in a position of the police coming along and shooting me and I decided - this was in the afternoon, that because I'd seen the banks and that in me walking, and decided maybe a bank robbery would give me enough - be enough reason for the police to come along and shoot me. I'd noticed where the Police Station was and picked the closest bank to the Police Station, it appeared to be the ANZ Bank. So I decided that would be the best option." 25 The appellant said that after he saw how shaken the bank teller was during the robbery he decided she would not handle seeing a shoot out. He said that as a consequence he decided not to put her through more stress and simply took the money and left. As the Crown pointed out there was no explanation given as to how he could have engaged in a "shoot out" with a replica gun. 26 The appellant was questioned at the police station following his arrest. This occurred on 23 February 2005 when two brownish coloured marks on each side of the appellant's spinal column were detected. The solicitor who took the photographs of the appellant said that she also saw red grazes on the appellant's knees. Evidence was given by Ms Deluca that she had not noticed any injuries or any indications of soreness to the appellant when they met on 14 February 2005 and gave each other a hug. The police did not observe any injury to the appellant when they searched his house and car on 16 February 2005. On both these occasions the appellant had worn a short sleeved shirt and "cargo shorts." In his evidence the appellant said that Ms Barkwill had commented on bruises she had observed on his back on the night of 18 February when they had slept together. Ms Barkwill denied this. 27 The appellant accepted that he had killed Mr Dickson. He said that he acted in self-defence. The issue of provocation was also left with the jury. In relation to the latter issue I have discussed the factual basis for the submission in [40]-[42] below.

Ground One: the trial miscarried because of the admission into evidence of the circumstances of the armed robbery committed by the appellant. 29 The appellant submitted to this Court that the evidence of the armed robbery, although having some probative value, was weak and the evidence, being unfairly prejudicial to the appellant, should have been rejected. In the alternative it was submitted that "surgery" could have been carried out on the evidence and the conversation with the bank teller tendered without evidence that it occurred during a robbery. 30 Before the trial commenced the appellant had unsuccessfully sought to have his trial for the armed robbery count separated from his trial for the murder. That application was rejected but no appeal was filed. When the matter was agitated during the trial, counsel for the appellant indicated that the appellant admitted as a fact that (a) he attended the residence of the deceased on the day of his death; (b) he entered the deceased's residence; (c) there was a verbal and physical confrontation with the deceased; and (d) he inflicted the fatal wounds during the course of a struggle. The appellant also admitted that he had robbed the bank. 31 The trial judge considered an objection to the evidence which he identified as being evidence of the robbery together with statements about it either before or after the event. His Honour identified the fact that the principal issue in the trial was likely to be self-defence. His Honour determined that the appellant's statements to other persons as to the nature of, and reasons for his actions were intertwined with his statements regarding his intention to obtain money unlawfully and to flee. His Honour was further of the view that evidence of the proposed robbery and flight was capable of demonstrating consciousness of guilt, although whether it had this quality was a matter for the jury. His Honour referred to the remarks of Simpson J in R v Cook [2004] NSWCCA 52 where her Honour considered the issues relevant to lies which were said to reflect consciousness of guilt (at [21] and following). 32 His Honour concluded that parts of the statements made by the appellant to Ms Mitchell, Ms Barkwill and to Ms Mathews relating to his intention to rob a bank or the fact that he had committed a bank robbery to provide funds for his contemplated disappearance were relevant as possible evidence of consciousness of guilt. The robbery and contemplated flight might be found by the jury to reflect an awareness on his part that his actions in killing the deceased did not flow from a belief that he had been acting in defence of his person. Similarly his Honour ruled that the evidence of the removal of the children to Queensland and his return to New South Wales and the carrying out of the robbery at Wauchope were capable of reflecting a consciousness of guilt. 33 Having concluded that the evidence was relevant, his Honour proceeded to determine whether it should be excluded pursuant to s 137 of the Evidence Act 1995. His Honour concluded that the probative value of the evidence of the robbery was high and concluded that the expanded version of the appellant's statement to Ms Preston in the bank was capable of being regarded by the jury as a significant admission. His Honour said: "Secondly, as the Crown submitted, the facts of the Wauchope robbery tend to give credibility and reliability to the evidence of both Ms Mitchell and Ms Barkwill. Thirdly, as I have already said, the evidence is capable of demonstrating consciousness of guilt in the sense I have described, particularly having regard to the issues that arise in the present matter. This is so notwithstanding the fact that ultimately the accused handed himself in to the police. As to prejudice, there is little doubt that the jury will be likely to take a dim view of the accused's character when they become aware of his involvement in the armed robbery. Certainly it will be unlikely to endear the accused to the jury. In that obvious sense, the material is prejudicial to the accused. But will the material be used by the jury in a way that is or might be unfair to the accused? The authorities make it clear that there is no general principle that when the explanation for flight involves revealing other offences, the evidence should be rejected. (See R v Cook per Simpson J at para 47). That, of course, is not, in any event, the situation here. The Crown case is that the contemplated flight embraced, as an essential feature, the robbery that was, shortly after the killing, actually carried out. There appear to me to be two safeguards that substantially reduce, if not entirely eliminate, the risk of the robbery evidence being used unfairly. The first relates to the directions to be given to the jury. I addressed this matter at length in my previous decision given on 22 June 2006. There is no need for me to repeat those earlier remarks other than to say I adhere to them. Indeed, the Crown has prepared a draft direction, it appears in the transcript of the argument, and I would expect, with the additional assistance that I can anticipate from Mr Stewart, that a satisfactory direction can be formulated to make it absolutely clear to the jury how they may all, more importantly, may not use the evidence. Secondly, the general direction relating to the accused's post killing conduct, including the robbery itself, as evidencing a possible consciousness of guilt will alert the jury to the possibility that he may have undertaken that course of conduct by reason of consciousness of guilt, not of the offence of murder but of other offences or of other discreditable conduct (see Cook again at para 47). So too will a direction relating to the remark passed in the bank during the robbery point to the possibility that it may not be an admission of murder but one relating to his generally discreditable conduct that is distinct from the offence charged. For these reasons, it is my present view and hence my present ruling that the robbery evidence may be admitted." 34 The appellant challenged his Honour's conclusion and submitted that the probative value of the evidence of the robbery was not high. It was submitted that his Honour erred in finding that the admissions about the death of the deceased and their juxtaposition with the robbery "inextricably intertwine[d] the two sets of material." It was further submitted that the evidence was not capable of demonstrating consciousness of guilt "of murder as opposed to manslaughter on the basis of excessive self-defence and provocation". Finally it was submitted that the directions could not eliminate any unfair prejudice. 35 The appellant accepted that a decision of a trial judge made pursuant to s 137 may only be reviewed by consideration of the principles stated in House v The King (1936) 55 CLR 499: see Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195 at [76]; R v SJRC [2007] NSWCCA 142 at [34]; Can v R [2007] NSWCCA 176 at [43]. In Gonzales v R [2007] NSWCCA 321; (2007) 178 A Crim R 232 Giles JA observed at [55] that the provision is akin to a discretion in that it calls for an evaluative judgment; see also Smale v R [2007] NSWCCA 328 per Howie J. 36 In my judgment the challenged evidence was properly admitted. The admissions which the appellant made in the course of the robbery were capable of being understood by the jury as reflecting a consciousness in the appellant that he had wrongfully killed the deceased. 37 The appellant's reaction to the killing, including the commission of the armed robbery, was an indication of his state of mind and how he viewed his actions. He told his mother in the note to her "All I know is, that the thought of spending the rest of my life in prison does not appeal to me." It was open to the jury to conclude that his flight, and the measures he took to stay on the run from the police, including raising money by robbing the bank, indicated a consciousness on his part that he had not acted in self-defence. 38 The appellant said that his reason for committing the armed robbery of the bank was to "lay low" for a while to evade capture for killing the deceased. He did not suggest that he committed the robbery for some unrelated reason. 39 The appellant was not in the dilemma referred to in R v Cook [2004] NSWCCA 52 of being unable to say anything about the evidence or being required to disclose unrelated criminal activity. The defence had available the submission to the jury, as was submitted to this Court, that the appellant's actions were motivated by panic and borne of a feeling of moral (not legal) responsibility or the prospect of unjust arrest. 40 Counsel for the appellant submitted that the evidence of flight was not capable of demonstrating consciousness of guilt of murder as opposed to manslaughter on the basis of excessive self-defence or provocation. Although both self-defence and provocation were left to the jury it is difficult, on the facts as revealed by the evidence, to determine how provocation could have arisen for serious consideration. The words said to constitute the provocation were allegedly uttered by the deceased whilst the appellant was in fear of his life as he was being attacked with an iron bar. Moments later it is said that he lashed out with the knife in self-defence. 41 The relevant extract from the transcript is as follows: "Q: At that time, did you fear for your safety? A: Yes. Q: When you say yes, you did fear for your safety, what at that time were you thinking could happen to you? A: I thought I was going to die. Q: Did you do anything when that was happening. You said that you put your arms up? A: As I put my arms over my head, I cried out to him to stop, 'Stop hitting me. I've got kids.' Q: Did he respond at all to that? A: He say, 'Fuck you. I'm going to beat you to a fucking pulp. I'm going to fuck your kids up the arse like I fucked your missus'." 42 The appellant then described his burst of rage and energy and kicking himself free. He said that he headed towards the lighted door, grabbed the knife from the floor and stood up. He then said: "I saw him coming at me with the bar raised, and in a split second I've returned swing to the left and the knife hit him in the neck on the side of the neck." He was later asked: "Q: Firstly, why did you pick up the knife? A: I don't know, I wasn't even thinking. I think I was more reacting than thinking. Q: Reacting to what? A: Him attacking me, the rage I felt, the fear. Q: Fear of what? A: Fear of dying." 43 Any effect upon the appellant of the alleged provocation could not be separated from his actions said to have been done in self-defence. The appellant only described himself lashing out with the knife once and it is difficult to see, on his account, how excessive force entered into the equation. If his account was accepted he had lawfully acted in self-defence. At the very least from his account of the relevant events he would have believed that his actions were lawful. It must be remembered that the appellant claimed that he was initially confronted by the deceased who was carrying the knife. In these circumstances the appellant's reaction to the killing including his actions in fleeing the police and committing the armed robbery were capable of indicating how he truly viewed his actions. 44 There are further considerations. In my opinion it was open to the jury to conclude that the appellant's statement to the bank teller constituted an admission that he had murdered the deceased. He told the teller: "Once they find out what I did last week, that's it. I need the money." Even if the statement was open to being construed as an innocent interpretation, it was capable of being understood as an admission that he had killed the deceased without justification. There were other admissions interwoven with the robbery. These included the conversation he had with Ms Barkwill and the counting out of the money and revealing the gun. To my mind the circumstances associated with the robbery were inextricably bound up with the conduct of the appellant following the killing and were admissible. 45 The appellant emphasised that the prejudicial effect of the evidence was high and submitted that for this reason it should have been rejected (s 137 Evidence Act 1995). I do not accept that submission even though the evidence revealed another criminal offence: see Markby v The Queen (1978) 140 CLR 108 at 116; Smale v R [2007] NSWCCA 328 at [33]. The same position prevails in relation to offences committed during flight: R v Cook [2004] NSWCCA 52 at [47]; Quinlan v R [2006] NSWCCA 284; (2006) 164 A Crim R 106 at [18]. The detail of the robbery was not an issue. There was no difficulty for the jury in separating the fact of the robbery from the killing and there was, in my view, no prospect of the jury using the evidence in an impermissible way. As the respondent pointed out, it was possible for the appellant to have turned his admission of the robbery to his advantage. Having made that admission and given himself up to the police, he was in a position to indicate that he was a person telling the truth including giving a truthful account of the circumstances in which he killed the deceased. 46 I reject this ground of appeal.

Ground 2 - the trial miscarried because the learned trial judge did not give the jury adequate directions about what use could be made of the armed robbery evidence. 47 His Honour addressed the issue of the armed robbery on a number of occasions. His Honour said: "Now once again may I remind you the Crown has submitted that you should infer that the actions of the accused, relating to his proposal for flight and his actions in fleeing from Taree to Queensland and from Queensland back to Taree; his actions in robbing the bank, then leaving Taree and going to Sydney and out to Kelso before he made up his mind to hand himself in, that all those matters, and the other matters that I have mentioned, were occasioned by consciousness on the part of the accused of his guilt, that is guilt of the offence of unlawfully killing the deceased. In the context of this trial, the Crown asserts that these circumstances are evidence from which, together with all the other evidence in the case, you can infer that the accused realised that he had not acted in self-defence in killing the deceased and that he had not acted under provocation. … If, however, you are satisfied that each circumstance was in deliberate contemplation of, or preparation for flight or an incident of the actual flight itself: then you must also be satisfied that the circumstance, firstly, was carried out by the accused because of his knowledge of the offence he had committed of murder, and secondly, occurred because the accused realised that to remain in Taree would inevitably lead to his arrest and prosecution. And thirdly, occurred because the accused knew and realised his own guilt, in the sense that he knew he had unlawfully killed the deceased, that is that he killed him otherwise than in self-defence and under provocation. I emphasise that you must be satisfied that what was in his mind when he undertook these acts, when each of these circumstances occurred, was his guilt of the offence of murder, that is of the unlawful killing of the deceased and not of some other crime or wrong doing or some other bad or discreditable conduct. In particular you must be satisfied that the circumstances in each situation I have identified point unequivocally to consciousness of guilt of the offence of murder and not to some other offence or discreditable conduct such as breaking into the deceased's house, fighting with him, struggling with him, assaulting him, or such as being morally responsible for his death or burning the house down with body of the deceased inside it. Once again it is necessary for me to remind you that people do not always act rationally and that conduct of this sort may sometimes be explained in other ways. There may be reasons for the accused's plans for fleeing Taree, if you find that is what he did or contemplated doing, apart from his realisation of guilt of the offence of murder. It may, for example, have been his fear of being unjustly accused of murder, his fear of being unjustly prosecuted for the offences I have identified, or out of concern for his family. If you consider that there is a reasonable possibility that any one of the actions of the accused I have identified occurred for any of those reasons, you cannot use them in the way urged by the Crown. If you are satisfied, however, of the three matters to which I have referred, then you are entitled to use that finding in relation to each circumstance in aid of the other evidence of the Crown case as pointing towards the guilt of the accused. Once again, standing by itself, the evidence could not prove guilt." 48 Earlier in the trial his Honour directed the jury in the following terms, which were repeated to the jury in the summing up: "It would be totally wrong and quite impermissible for you to reason that, because the accused had committed a bank robbery shortly after the death of the deceased, that therefore he must be guilty of the murder of Mr Dickson, the deceased. Your own commonsense and logic will tell you of the fallacy of that reasoning. You can well imagine that a person might commit one crime but be completely opposed to the commission of a different crime. It is illogical and it would be quite unfair for you to reason that simply because the accused in this case committed a bank robbery, a matter that he has not denied, that therefore he would also murder a fellow human being." 49 The appellant submitted that his Honour erred by referring to "unlawful killing" rather than, on each relevant occasion, referring to the flight and bank robbery as "consciousness of guilt of the crime of murder." There is no substance in this submission. In the summing up his Honour said: "Thirdly, the lie was told because the accused knew that the truth of the matter about which he lied, for example, that he knew the place where the deceased lived, would implicate him in the unlawful killing of the deceased, or to put it another way, because of a realisation of guilt and a fear of the truth. By this I mean, on the issues raised in this trial, a realisation that he had not acted in self-defence or under provocation when he killed the deceased." 50 In this passage his Honour made plain that when he spoke of unlawful killing he was speaking about a killing which was not motivated by self-defence or under provocation. To similar effect are the opening words of the first passage extracted from the summing up in [47] above. His Honour spoke in similar terms in later paragraphs. 51 Defence counsel did not complain at the trial about these directions and rule 4 applies. I would decline leave to raise this ground of appeal.

Ground 3 - the trial miscarried because of the admission into evidence of the possession of hunting knives by the appellant. 52 David Steer, the appellant's brother gave evidence that when visiting the appellant on one occasion in about May 2004, the appellant showed him three "camping type, hunting type knives … normal, off-the-shelf type that they sell in the sporting goods." Objection was taken to this evidence. By the time the evidence was introduced the appellant's daughter, Kimberley, had already given evidence. In her ERISP she said that she had actually carried one of the appellant's knives "last week or something, not long after he broke up with Nicky." She said her father had two or three little knives and also a bigger one, described by her as "like the ones in the Army shop" which was inside something which was consistent by her description as being a sheath. She also told police that when she was with the appellant on their way to Queensland he told her that he had disposed of the weapons, including his knives. 53 When the police searched Mr Dickson's house following his death they did not find the knife used to stab him. There were knives in the cutlery drawer and in the sink in the kitchen but these were excluded from being the weapon. The weapon was not otherwise located. 54 It was submitted that evidence of the multiple knives owned by the accused would have influenced the jury adversely to the appellant because they may have concluded that, by reason of the possession of the knives, he had a propensity to commit crimes using them. 55 When ruling that the evidence was admissible the trial judge said: "… there is no evidence that one of these three hunting knives was used in the killing and that will no doubt be pointed out to the jury by counsel in submissions. For my part again I don't see that the jury would be likely to assume wrongly that it must have been one of the hunting knives that necessarily brought about the death of the deceased. The issue is simply whether the accused had in his possession knives and whether they may have been available to him for his use." 56 The respondent submitted that his Honour was correct to admit evidence of the knives. It was submitted that it was relevant to show that the appellant had access to knives, particularly knives which might have caused the relevant wounds, which were described by Dr Lyons as being occasioned by a "sharp instrument such as a surgical knife, a piece of glass or a general knife". Furthermore, it was submitted that the evidence about the existence of knives from David Steer supported the evidence which had already been given by Kimberley Steer. The fact that she gave accurate evidence about the knives was submitted as supporting the conclusion that she was reliable about what the appellant told her about how the deceased met his death. 57 I do not accept the Crown's submission. In my judgment the evidence of multiple hunting knives had the potential to occasion prejudice to the accused. In the absence of evidence that any one of the knives was actually used in the killing, the jury may have been inappropriately influenced to conclude that merely because the appellant possessed knives he had a propensity to use them to kill another person. 58 However, a perusal of the transcript indicates that although the evidence was admitted and the appellant was asked by the prosecutor whether he had taken a knife, which was one of those seen by his brother to the deceased's house, the matter was not pursued. The Crown Prosecutor confined his submission to a suggestion that the appellant took a knife with him that night and the jury would be satisfied, when looking at the nature of the stab wounds, that a knife other than a typical kitchen knife had been used. In my judgment although the evidence should not have been admitted it played only a minor role in the evidentiary matrix and was not the occasion of injustice to the appellant.

The proviso 59 The Crown submitted that even if one of the grounds of appeal was made out this was a suitable case for the application of the proviso (s 6(1) Criminal Appeal Act 1912). In my judgment this submission should be accepted. This was a compelling Crown case. 60 The evidence disclosed a motive for the appellant killing the deceased. The appellant, on his own admission, went to the deceased's house and forced entry through a window. He went there with aggressive intent. The deceased died after receiving a blow or blows to his skull and knife wounds. The knife was not found and it must be concluded was disposed of by the appellant. 61 After committing the offence the appellant lied in denying his involvement. He subsequently admitted the killing. He then travelled to Queensland where he left his children with their mother and returned to New South Wales with the intention of robbing a bank so that he could "lay low" for a time. He expressed his fear to the bank teller that if he was found he would be incarcerated for his actions. There is nothing in his actions to suggest that he believed that he was justified in killing. All of his actions after the offence were consistent with a belief that he had entered the deceased's premises with the intention of killing or inflicting serious injury on him. 62 In my judgment the admission of evidence that the appellant owned hunting knives was in the ultimate of limited if any significance in the trial. In my judgment no substantial miscarriage of justice has actually occurred.

Orders 63 The appeal should be dismissed. 64 SIMPSON J: I agree with the orders proposed by the Chief Judge at Common Law. With respect to grounds 1 and 2, I do not entirely agree with his Honour's reasoning process. I agree with the Chief Judge's reasoning in relation to ground 3. I can express my reasons briefly. It is not necessary to restate the facts.

Grounds 1 & 2: admission of evidence of the circumstances of the bank robbery, and directions in relation thereto 65 There were two essential features of the evidence concerning the bank robbery. One was the statement said to have been made by the appellant to the bank teller, Ms Preston. That was unequivocally an incriminating statement, signifying an acceptance by the appellant that he had, the previous week, engaged in conduct that left him vulnerable to consequences of some, serious, kind, and in need of money to allow him a way out. That this evidence was, in some form, admissible and properly admitted was not in question. What was in question was the extent to which the context in which the appellant made those remarks was admitted. 66 The other feature of the evidence was the evidence of the bank robbery itself. That was what has been treated as conduct evidencing a consciousness of guilt. It was evidence capable of exposing to the jury the desperate situation in which the appellant perceived himself to be, and his need for money, in large amounts and quickly, in order to escape the consequences of what he knew he had done. It was properly characterised as evidence admissible within the principles stated in Edwards v The Queen [1993] HCA 63; 178 CLR 193. 67 This was not the only material in the trial urged as evidencing a consciousness of guilt on the part of the appellant. There was, for example, the evidence of his flight to Queensland, and of his note to his mother. 68 The traditional directions given to juries where conduct evidencing consciousness of guilt is relied upon by the Crown includes a strong caution that the jury must, before acting on that evidence, be satisfied that the guilt of which the accused is said to be conscious is of the offence charged, and not some other offence or other discreditable conduct. Ordinarily, that does not occasion too much difficulty. However, where, as here, it is accepted by an accused that he is responsible for the death of the victim, but the issue is whether he is guilty of murder or the lesser crime of manslaughter, in my mind a real difficulty arises, calling for carefully tailored directions. 69 It is not sufficient, in my view, to tell the jury that they must be satisfied that the accused is conscious of his guilt of the crime of murder as distinct from manslaughter; that imputes to an accused person an appreciation of the circumstances that differentiate murder from manslaughter, and of circumstances that provide a partial defence (either by reason of provocation, or self defence) to a charge of murder. 70 I expressed my views on this question in R v Sievers [2004] NSWCCA 463; I adhere to those views. In saying that, I acknowledge that my judgment was a dissenting one, and that an application for special leave to appeal to the High Court of Australia was refused: Sievers v The Queen [2005] HCA Trans 663, 2 September 2005. 71 For those reasons, I respectfully disagree with that part of the reasoning of the Chief Judge that takes into account that a conclusion was open to the jury that the appellant was conscious that he had not acted in self defence ([37]) and that, if the appellant's own account were accepted, then he had acted lawfully in self defence and would have believed that his actions were lawful ([43]). 72 Self defence and provocation are legal concepts. Unless the evidence otherwise establishes, an accused person should not, ordinarily, be presumed to know what they mean or what circumstances make them available. 73 The directions given by the trial judge made the same assumption. In my opinion, those directions were inadequate to meet the requirements of Edwards, and were not moulded to fit the circumstances of the case. 74 Notwithstanding this, I would dismiss the appeal against conviction. The evidence against the appellant was extremely strong; there was evidence of repeated and consistent acknowledgements or admissions by the appellant, so much so as to constitute a pattern; and not one instance of his adding or incorporating anything, even the slightest hint, that Mr Dickson had conducted himself in the way the appellant later claimed (through his lawyer) amounted to provocation or gave rise to self defence. 75 I would dismiss the appeal against conviction. 76 McCALLUM J: I agree with the orders proposed by the Chief Judge at Common Law and with his Honour's reasoning in respect of ground 3. In respect of grounds 1 and 2, I agree with the reasoning of Simpson J. **********

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