Director of Public Prosecutions v Samson-Rimoni (Ruling No. 1)

[2010] VSC 26

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1462 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHAN SAMSON-RIMONI

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3, 4, 5, 8 February 2010
DATE OF RULING:	8 February 2010
CASE MAY BE CITED AS:	DPP v Samson-Rimoni (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2010] VSC 26

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CRIMINAL LAW – Murder – Manslaughter – Defensive homicide – Self-defence – Common law and statute – Subsequent conduct – Disposal of weapon – Lies – Edwards direction.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr I Heath	Office of Public Prosecutions
For the Defendant	Mr S Johns	Balmer & Associates

HIS HONOUR:

1. In this trial the evidence has concluded and counsel's addresses are about to commence.  Two issues have arisen on which I am required to rule.  The first issue concerns the question of self‑defence and whether and how it should be left to the jury.  The second issue concerns the post‑offence conduct or what might be more appropriately described as ‘subsequent conduct’ and whether the prosecution should be permitted to rely on the particular pieces of evidence to which they refer as representing an implied admission of guilt by the accused in relevance to the charge of murder.

1. Khan Samson‑Rimoni is charged with the murder of Corey McGoon at Clayton on 14 September 2008.  The evidence called by the Prosecution indicates that it occurred in the following circumstances.  The accused arrived at a party at the home of the Kurth family in Clayton on the evening of Saturday 13 September about 10 pm.  Some time after he arrived he was talking about a fight he had been in some weeks before and produced a knife from the front of his pants and said that his father had given it to him for protection. 

1. In the early hours of Sunday 14 September 2008 the party was still going and at about 2 am two brothers, Simon and Shane Middleton, argued with each other and then physically fought with each other on the front lawn of the Kurth residence.  During that confrontation some punches were thrown and others at the party including the accused were observing what was occurring.  The evidence indicates that the deceased Corey McGoon tried to stop the fight but as he did so the accused told him to leave the Middleton brothers alone and let them fight.

1. The deceased and the accused then started to argue between themselves and there was a physical altercation in which the accused held the deceased man Corey McGoon by the neck.  During the pushing and shoving that followed Corey McGoon is said to have punched the accused man to the head once or twice or, on the account given by the accused to the police, three times.

1. Other people who were present then intervened to stop that fight. 

1. The younger of the Middleton brothers, Shane, then left the party on foot, having been directed to do so, and was walking along Fortuna Street away from the property where the party had been held.  He was upset.  His friend, the deceased, Corey McGoon, caught up with him and offered to drive him home.  As they later travelled in McGoon's car along Fortuna Street in the direction of Browns Road they saw the accused man walking away from the party on the footpath further up towards the corner.

1. At the time Middleton was on the phone to the witness Carmelo La Rocca but words were exchanged between the deceased and the accused.  It is alleged that the accused then walked to the driver's side window of the car and slapped McGoon's face through the open driver's side window.  At that time Middleton was speaking to Carmelo La Rocca by mobile phone.  La Rocca has given evidence about what he heard.  That evidence has included words alleged to have been used by the accused to the effect of, "Yeah, come on, you want to have a go?".  That conclusion is said to be able to be reached because La Rocca said he knew McGoon's voice and that was not the voice that spoke those words.  Since the only other person present apart from Middleton who was on the phone was the accused, it is to be argued, I suspect, that those aggressive words were spoken by the accused.

1. McGoon got out of the car and there was then a confrontation between him and the accused.  Corey McGoon was unarmed.  As a result of what then occurred, McGoon sustained several injuries including a stab wound to the chest.  The evidence of the pathologist makes clear that the chest wound caused his death after he had staggered some 56 metres back towards the house where the party had been held. 

1. A post mortem conducted later that day revealed that Mr McGoon had sustained an incised wound in the centre of his chest which had caused substantial internal blood loss.

1. The depth of wound from skin level was 105 millimetres and the blow which caused the wound was described by Dr Dodd as likely to have been between moderate and severe in its force.  In part, that conclusion was reached because the knife had cut through part of the fourth rib.  The post mortem also revealed other injuries to the hand and arm of the deceased which were consistent with being defensive type injuries, though arguably there were other explanations. 

1. According to the evidence, after the confrontation had occurred the accused man then went into the Kurth's house and said to Stephen Kurth, "Corey's out on the road and he could have been hit".  A number of people then went out to assist Corey McGoon but to no avail. 

1. Shortly after this the accused made two calls to 000, one at 2.37 am using the Kurth's home phone and the other at 2.44 am using a mobile phone obtained from a man named Sunit Sarkar who happened to be walking in nearby Panorama Street with his girlfriend.  During the course of the second call, the accused having described that he had assaulted someone and needed to be arrested, he was asked by the operator whether he used any weapons to carry out the assault and he said he did not. 

1. Later when police arrived the accused was taken into custody.  At this point it is relevant to note that the trial has been conducted with one primary issue for consideration.  As Mr Johns of counsel for the accused submitted to the jury in his opening response:

Khan Samson‑Rimoni didn't intend to kill or cause serious injury to the deceased and that's perhaps where the main line is drawn between the prosecution and the defence.

Later Mr Johns said:

Self‑defence has been mentioned and it's mentioned in his interview.  He uses the phrase himself at one point.  I don't want to cloud the issues for you any more than they need to be at this stage.  He talks about self‑defence more as an explanation of why he produced the knife, not to resist.  He at no stage says he intended to kill or cause serious injury to Mr Samson‑Rimoni in self‑defence or anything of that nature.

1. After his arrest the accused was interviewed by the police and that interview was conducted in two stages.  The first stage was at the Oakleigh police station where an audio recording was created and the second stage was at the Homicide Squad Office where a video recording was created.

1. In brief summary, that interview produced the following from the accused.  Initially he said there had been a confrontation at the party between he and McGoon and then later he asked McGoon why the latter had hit him and he then said:

And then he got out of his car and smacked me in the head and I pushed back and I just - I grabbed something. I don't know what I grabbed. It could’ve been anything.

That is question 13.

1. He then described going to get assistance and ringing the police.  He agreed he had been drinking that night and consumed about 10 stubbies of beer.  He was asked about his relationship with Corey McGoon and he said they had had arguments before.  The accused claimed that at the party McGoon said he had never really liked the accused.  He was then asked about the earlier confrontation with McGoon during the fight between the Middleton brothers and he claimed that McGoon had hit him three times in the head.

1. Returning to the incident which caused McGoon's death he said [at question 176]:

I'm like, ‘Wait a minute. Why did you hit me for?’  I was on the - I was on the pathway and he was on the other side of the road and I'm like, 'What did you do that for, man?  That's not - that's not cool. You shouldn't,’ you know, ‘We were alright and fuck' and then he said, 'What, what the fuck - fuck you', you know, he got out of his car and then I'm like, you know, 'Fuck off' and then obviously he went for a swing and I moved away and grabbed something and just … just did what I could and he fell. 

Later he claimed that McGoon was very aggressive and then he said [questions 248 to 276]:

Answer:	In the way he was walking and I went to walk back a bit and I was kind of like worried, because obviously he has a lot of friends that at that because I didn't really want to get killed or any - well".
Question:	Yeah?
Answer:	(Indecipherable).
Question 249:	Yep.
Answer:	And then I went and grabbed something off - off the ground, it was probably near the kerb and it was probably like some fuckin’ stick or some crap.
Question:	When you say - - -
Answer:	Something - - -
Question:	- - - stick, what do you mean?
Answer:	As - as you know those - those trees that they put in the fuckin’ nature strip and they have those pole things and there's like.
Question:	Like just a gar- - -
Answer:	There's a bit of thing ... ripped off that.
Question:	A garden stake or something?
Answer:	No, it wasn't even that.  It was only like really little and I picked it up and I went wham.
Question:	What do you think it was made out of?
Answer:	Wood.
Question:	Right.
Answer:	Or timber.
Question:	Yep.  When you say you went 'wham' what do you mean by", [and then it trails off.]
Answer:	I – I ducked and hit.
Question:	So when you say you ducked, what did you duck from?
Answer:	From him.
Question:	Him?
Answer:	From his arm.
Question:	Okay.  Was he trying to hit you?
Answer:	Yes.
Question:	And you ducked and then what happened?
Answer:	I swung wildly.
Question:	With what?
Answer:	With the – with the thing I just picked up.
Question:	Okay.  How many times do you think?
Answer:	Once.
Question:	You’ve - - -
Answer:	Just the once and obviously - - -
Question:	Whereabouts do you think you’ve hit him?
Answer:	I have no idea where I hit him.  I didn’t know where the blood was coming from when I went to grab him.
Question:	Alright.  OK.  And whereabouts is the thing that you’ve - - -
Answer:	I don’t know.
Question:	You’ve hit him with?
Answer:	It would’ve went – it would’ve went wherever I - - -
Question:	Yep.  How long was this item that you – this piece of timber?
Answer:	It was only like this long.
Question:	How long is that long?
Answer:	Ummm fuck.
Question:	Do you know measurements at all?
Answer:	About 20 centimetres maybe.
Question:	Right, and how - - -
Answer:	Not very long.
Question:	Round or square was it?
Answer:	It wasn't very long.  It was only very small and probably pretty sharp. From - from - from - because I didn't actually look at it.  I only just touched it.
Question:	Yep.
Answer:	It was only from feeling.
Question:	Was it ‑ so did you ‑ you take it from a staked tree or - - -
Answer:	No, I took it from the ground.  It was from - - -
Question:	It was on the ground?
Answer:	From the grass, yeah.
Question:	Alright.  And so – I think I asked, but whereabouts did you – where is that now?
Answer:	I don’t know.
Question:	Do you think you dropped it near - - -
Answer:	Yeah, it would have been - it would - I dropped it straight after - after the - after I saw him, like - like I don't know, he was – he was trying to like breathe and - - -

1. There is no dispute that much of what the accused said about the implement he claimed to have picked up were lies and the fact that he was in possession of a knife as he later admitted. 

1. He was then asked why he acted in the way that he did and he said because he was scared [at question 286].  He was then asked, [at question 287]:

Question:	Scared why?
Answer:	Because obviously like - I don't know.  He's - he's intimidating even though I'm bigger than him.  I'm not really a fighter.  I don't even really, like fight.
Question:	Yep.
Answer:	And when someone comes at you like that's just like “Fuck, what do you do?

And then further, at question 316,

Question:	…Anyway, I'll just ask you, you know, why did you do what you did tonight?
Answer:	Scared … … just was ‑ well, I – I hurt him to defend myself.  Like I could have gone other ways.  And I don't know I was pretty bad.
Question:	What – what were your main concerns about Corey?"
Answer:	Fuckin’ everything.  I didn't really want to hurt him.  I just wanted him to talk.  Like explain … because, like, you don't get involved in other people's arguments.  Especially brothers.  I mean, you don't get ‑ and then I was, like, wondering why he - he would and then – and then he start on me and I wasn't - I never threw one punch when – when he was hitting me.

1. After some further investigations a second instalment of the record of interview was held at the Homicide Squad Office.  The accused again gave an account of what occurred.  Describing his reaction to the deceased getting out of his car the accused said [at question 166]:

I ‑ well, I obviously wanted to know what was wrong. Why he wouldn't - why he wouldn't talk.  Why was - why was he being such a - like a cunt to me and then he just kind of snapped and I was - I was pretty freaked out that he got out of his car like that.  I mean he's only little.  I didn't think the guy would be real aggro and - yeah, and then I quickly went to go like that and grabbed like some stupid little thing.  It was only like this big and just went … with this hand.  Went like that and he was, like that and I was like 'What the hell' and then he, um, he went to just kind of walk away a bit and then he just fell and I went straight to him.

1. The accused persisted for a time in saying that the implement that he used was something he had picked up from the ground.  By this stage the police knew a knife had been used to inflict the fatal injury because they had the result of a post mortem by Dr Dodd.  In response, the accused was asked about that, and this is at question 180:

Question:	The post mortem is done where a pathologist comes, alright, and they cut open the person and they have a look at what injuries have been inflicted, okay.  And these people are experts in this and do it every day, okay.  And that evidence that we’ve had preliminary from them is that it was a knife that was used."
Answer:	Yeah, well, I don't know how that works.  It … … that – that – that would mean that I didn't pick up a piece of wood.  That it wasn't wood, maybe it was metal then, because obviously I didn't have a knife.

1. Urged to tell the truth, the accused finally admitted that he was carrying a knife and that was because some weeks beforehand he had been assaulted.  He then said in relation to the incident concerning the deceased:

And I went to leave and obviously I saw Corey and he had – had a go.  Had - had a bit of a swing and out of reaction, I pulled it out, but I didn't swing it.  It - he came towards me and then it was just like - like a split second moment and I - don't know.

1. He was asked about the whereabouts of the knife and he described having thrown it away after he had stabbed McGoon.  Despite police searches the knife has not been located. 

1. Asked again about his state of mind he said, and this is at question 259:

I felt very f-, I was fucked. I was - gonna get fuckin' beat up, I reckon, … … angry … … … pretty angry.  I didn't want ‑ it was just a reaction and I didn't mean to - hurt him at all.  I just did what came to me naturally.

1. The accused went on to say that he was protecting himself and never meant to use the knife.  He expected the production of the knife would deter Mr McGoon from any further aggression.  Ultimately when asked why he stabbed the deceased he said, "self‑defence".

Self-Defence

1. When I inquired of counsel for the accused as to how self‑defence should be left to the jury he expressed his position as something of a dilemma because the case has been conducted with the absence of murderous intent as the main issue and, as he submitted, self‑defence only arises for the jury's consideration if that issue is resolved adversely to the accused.

1. Ultimately though his position seemed to be that at least self‑defence at common law should be left to the jury.

1. Mr Heath, on the other hand, was clear in his submission that self‑defence should be left in both its forms.  He referred particularly to the judgment of the Court of Appeal in R v Kear[1] which he submitted made that course necessary.  As he also noted in R v Kell and Dey (Ruling No.1)[2] I considered the issue in a somewhat different factual situation.  There I noted:

   [1][1997] 2 VR 555.

   [2][2008] VSC 518

For self‑defence to be left for the jury's consideration in respect of the accused they find beyond reasonable doubt stabbed Mr Shepherd (if they do), there has to be evidence on which the jury could decide the issue favourably to the accused.  As the High Court observed in Zecevic v. DPP: 

As Gibbs J observed in Reg v Muratovic, "…the plea of self‑defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge to decide upon a plea of this kind, as upon any other question of fact, provided … that there is evidence on which a reasonable jury could decide the issue favourably to the accused".

Later in the joint judgment of the court the following appears:

Where an accused person raising a plea of self‑defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self‑defence.

On this question of whether or not self‑defence should be left to the jury my attention has been directed to the observations of Vincent J as he then was in R v.  Williams, where His Honour observed: 

There is no need for recourse to the large number of authorities from a number of jurisdictions which have made it clear that a trial judge must be astute to ensure that an accused person is not to be denied the consideration by the jury of any defence which may be legitimately open on the evidence.  The judge's duty in this regard is clear, it is not dependent upon any defence advanced on behalf of the accused and great care must be taken by the judge to ensure that full effect is given to this principle, even in the face of express disavowal by the accused of a possible defence involved. 

As the Court of Appeal (per Tadgell (dissenting), Ormiston and Phillips JJA) made clear in R v. Kear, if self‑defence is open on the evidence then a judge must charge the jury on self‑defence even where the factual basis for self‑defence is inconsistent with the accused's version of events at trial.

1. The issue is whether, despite Mr Johns' hesitation, self‑defence should left to the jury and, if so, in what form.  Having reviewed the record of interview of the accused, including the passages to which I have referred, as well as other aspects of the evidence, there would seem to be a foundation for concluding the deceased had behaved aggressively towards the accused during the evening.  It seems to me that self‑defence should be left both on the count of murder and the alternative count of manslaughter.  The accused expressed both a fear of being killed or beaten up by a person who was acting aggressively notwithstanding the initial approach came from him. 

1. The prosecution rely on the allegation that the accused slapped the deceased through the window of the car as I have earlier related.  The accused has not given evidence on his trial and he was not asked about that incident during the course of his record of interview.  Mr Johns will be arguing that the jury should reject the evidence of Mr Middleton being the witness who described that occurring. 

1. Whether this occurred and the consequences of any conclusion on that is a matter for the jury. 

1. Pursuant to s.9AC of the Crimes Act 1958 the statutory test for self‑defence is now as follows:

A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury. 

As to the alternative count of manslaughter s.9AE provides:

A person is not guilty of manslaughter if he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be necessary –

(a)to defend himself or herself or another person; or

(b)to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person –

that belief.

1. The issue that has arisen in the Trial Division of this Court is whether, given the statutory regime that applies to offences committed after 23 November 2005, common law self‑defence has been abrogated.  There is a consensus amongst my colleagues that the answer to that is likely to be “yes”, but that issue remains uncertain in the absence of a clear statement of legislative intent or a determinative consideration of the Court of Appeal.  The result has been that as a matter of fairness, juries in murder trials where self‑defence arises have been charged on both statutory self‑defence and common law self‑defence and that has become the practice of the court; see R v Parr[3], R v Pepper[4] and R v Gould[5].  The obvious course for me to follow is to adopt the approach of Their Honours and I will do so.  I will therefore charge the jury accordingly.

   [3][2009] VSC 166 per Whelan J.

   [4][2007] VSC 234.

   [5][2007] VSC 420 per Coghlan J.

Subsequent conduct 

1. There has been evidence given about the conduct of the accused after the stabbing of Corey McGoon.  The prosecutor wishes to rely on some of that conduct not just to attack the credit of the accused but also to assert that such conduct is an implied admission of guilt by the accused and affirmatively strengthens the prosecution case.

1. In this case there are two categories of conduct which the prosecutor wishes to rely upon for that purpose.  First the accused's disposal of the weapon and, second, a number of lies told by the accused about the weapon used in the confrontation with the deceased.  I will briefly identify each particular piece of evidence. 

1.The fact that the accused disposed of the knife. 

2.During a phone call made by the accused to 000 he said the following: 

Question:	So did you use any weapons to assault him?
Answer:	No, I did not.

3.The explanation by the accused to those at the party after the incident as follows: 

Question (from Mr Heath to Stephen Kurth), "Tell us about that?" 

Answer:	Well, he walked back into the garage and he told us that Corey was laying on the ground.
Question:	Did he say anything else?
Answer:	No, just that he could have been hit.

4.From the first record of interview referring to the weapon:

And then he got out of his car and smacked me in the head and I pushed back and I just - I grabbed something.  I don't know what I grabbed, it could’ve been anything.

5.From the first record of interview again referring to the weapon:  Question 176:

…and he got out of his car and I'm like, you know, ‘Fuck off’, and then obviously he went for a swing and I moved away and grabbed something.

6.From the first record of interview referring to the weapon where he gives details of the implement that he had picked up and they are set out in questions 249 to 261; I won't recite those again.

7.From the first record of interview referring to the weapon at questions 253 and 273, referring to picking the weapon up and taking it from the ground. 

8.From the first record of interview referring to the incident –at question 302:

Question:	And then what happened?
Answer:	He went towards the house and then just kind of like collapsed and I grabbed him and I was like 'What, what is it, what's wrong, what's wrong?', and then I just saw like some blood and I run as fast as I could.

9.From the second record of interview the passage between questions 166 and 220 referring to the absence of a knife, that he did not take it to the party and, as the Crown put it, the mechanism of the injury. 

1. As I have earlier noted, the jury in this trial are going to have to deal with the issue of whether the prosecution have proved an intent on the part of the accused to kill the deceased or cause him really serious injury.  His explanation in the record of interview is essentially that the incision in the deceased occurred without any such intent, he did not mean for it to occur.  In addition he has sought to portray the deceased as an aggressor.  There is some support for that proposition arising from the evidence of other witnesses regarding events earlier in the evening.  At the time of the incident apart from the deceased, the other witnesses were Shane Middleton and the witness Carmelo La Rocca who was at the other end of his telephone.  The effect of the evidence of both is to portray the accused as being aggressive. 

1. Consistent with Edwards v R[6], the question for me is whether it would be open to the jury to conclude that some or all of this conduct occurred because the accused perceived that the truth about what occurred was inconsistent with his innocence.  Was it conduct that an innocent person would not engage in? 

   [6](1993) 178 CLR 193.

1. Mr Johns has submitted that the conduct is, as he put it, neutral as between murder and manslaughter and is consistent with either and therefore by reference to the Court of Appeal in Ciantar[7], the evidence should not be left to the jury on the basis contended for by the prosecutor. 

   [7](2006) 16 VR 26.

1. With respect, I suspect Mr Johns has slightly simplified the view the court put.  The Court said:

So, if an innocent explanation of post‑offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post‑offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt.  But where the judge is satisfied that the post- offence conduct, when taken in conjunction with the circumstances and events so identified is capable of demonstrating such a consciousness of guilt, the post‑offence conduct should be left to the jury to determine whether it has that effect.  Similarly, where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.

1. Here the accused had disposed of the knife used in the confrontation and then lied about what occurred when he first spoke to others at the party and then lied to the police about what implement he had used on the deceased in that confrontation.  Such an explanation is arguably intended to identify a state of mind suggesting a spontaneous incident with unintended consequences whereas the possession of a knife deliberately taken to the party and being carried and produced when contact with the deceased occurs may be regarded as inconsistent with that explanation.

1. It is, thus, the conduct of the accused immediately after the incident in concealing the weapon and thereafter pretending to others that there was some other explanation for the condition of the deceased, followed by numerous attempts to persuade the police that he did not use the knife, which is capable of being used to prove intent.  The combination of the disposal of the knife and the lies told gives the evidence its probative value.  As Vincent JA said in R v Akkus[8]:

In each situation, the judge will need to consider whether the conduct is capable of simply casting doubt upon the credibility of the accused's version of events or subsequent contentions concerning his or her actions or intentions at the time on the one hand, or, on the other, whether the post event conduct is sufficient to support the inference that by engaging in it the accused has made an implied admission of belief of guilt.  The jury must be instructed accordingly.

[8][2007] VSCA 287 at paragraph 68.

1. In the course of his submissions Mr Heath referred me to the judgment of the Court of Appeal in R v Nguyen[9].  In that case the application for leave to appeal succeeded because the trial judge in that case had not put the instruction to the jury identified in Edwards where the Crown relies on lies (or in this case other conduct as well) as evidence that the accused was conscious of his guilt.  The point of referring me to the passages in the judgments of each member of the court was to make the point that there were similar considerations in that case in the way post‑offence conduct could be used as probative and capable of representing an implied admission of guilt. 

   [9]118 A Crim R 479.

1. There is force in that submission.  As was observed by Winneke P in the course of his judgment at page 488:

It was the conduct of the applicant, immediately after the shooting, in concealing the weapon and thereafter pretending to police that an intruder had shot the deceased which, because it was capable of being used to prove intent, put the applicant at risk in the absence of proper directions.  It was this combination of the concealment and pretence which gave the evidence its probative value.

1. I have come to the conclusion the Crown should be permitted to rely on all but one of the matters.  I do not regard the eighth matter identified as being established as a lie and even it if were, capable of representing an implied admission of guilt in the way the Crown contends. 

1. In Edwards Deane, Dawson and Gaudron JJ said:

…the jury should be instructed that there may be reasons for telling of a lie apart from the realisation of guilt.  A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence.  The jury should be told that, if they accept that a reason of that kind is the explanation for the lie they cannot regard it as an admission.  It should be recognised that there is a risk that if the jury are invited to consider a lie by an accused they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters.  And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told.  The accused may be confused. 

1. Having reached the view I have, I will of course give a full direction consistent with Edwards in relation to this evidence.

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