R v Bacon

[2012] QCA 340

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bacon [2012] QCA 340

PARTIES:

R
v
BACON, Peter Edward
(appellant)

FILE NO/S:

CA No 114 of 2012
SC No 14 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

7 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2012

JUDGES:

Chief Justice and Muir and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OF EVIDENCE – where appellant convicted after trial of murdering his friend – where defendant sent a letter and text messages to former partner after the killing – where letter contained words “I mentally snapped again” – where defence counsel did not object to admissibility of this evidence at trial – where appellant also told several lies after killing deceased – where appellant submitted the evidence of post offence conduct lacked specific relevance to a fact in issue and was inadmissible – where appellant the subject of a home invasion in August 2006 in which he sustained a head injury inflicted by a baseball bat or axe – where appellant’s former partner gave evidence that on the night of the killing the appellant was aggressive towards her – where appellant submitted this evidence was irrelevant and inadmissible – whether evidence admissible

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where appellant submitted trial judge failed to properly direct jury regarding the permissible use that could be made of a letter and text messages that appellant sent to former partner after the killing as evidence of post offence conduct relied on to establish consciousness of guilt – where appellant submitted trial judge failed to adequately direct jury regarding the permissible use that could me made of evidence relating to a 2006 home invasion and the appellant’s conduct towards his former partner on the night of the killing – whether jury properly directed

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, considered
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263, considered
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50, cited

COUNSEL:

S M Ryan for the appellant
D C Boyle with M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Muir JA.  I agree that the appeal should be dismissed, for those reasons.

1. MUIR JA: Introduction The appellant was convicted after a trial of murdering Paul Karran in Gladstone on or about 28 January 2010.  He appeals against his conviction.  Before considering the five grounds of appeal substituted at the commencement of the hearing of the appeal for the one ground in the original Notice of Appeal, it is desirable to outline the evidence before the jury.

The evidence

The evidence of Ms Zoe Russell

1. Ms Russell’s evidence was to the following effect.  In August 2006 whilst she was residing in Clermont in a de facto relationship with the appellant, a person known to her, Chris MacFarlane, entered their dwelling.  He attacked the appellant, inflicting a head wound with an axe or baseball bat which required overnight hospital treatment.  The relationship between the appellant and Ms Russell, which concluded in December 2007, was resumed in Yeppoon in mid-January 2010.  The appellant was aware that Ms Russell had been in a relationship with Mr MacFarlane.

1. On 21 January 2010, the couple went to stay with the deceased, a friend of the appellant, in his residence in Gladstone.  They took with them Ms Russell’s three year old daughter.  The appellant and Ms Russell shared a bedroom.  The deceased had another.  On the afternoon of Monday 25 January after the deceased, the appellant and Ms Russell had consumed a cask of wine, the appellant adverted to  the home invasion in Clermont and told Ms Russell  it was her fault and that “he got hurt sticking up for [her]”.  The couple were alone in their bedroom at the time and the appellant became angry and aggressive.  He grabbed Ms Russell by the throat, started to choke her and punched her in the face, causing her to “blank out” briefly.  The deceased came to the door and said, “Come on mate, that’s enough,” and was told by the appellant to “fuck off”.

1. At a convenient time, Ms Russell took her daughter from the house and drove off in her car, leaving her belongings including her mobile phone.

1. On Wednesday 27 January, Ms Russell received a telephone call from the appellant.  There was discussion about what was to be done with the appellant’s wallet which was in Ms Russell’s car.  After the discussion, Ms Russell decided to return to the deceased’s residence in order to give the appellant his wallet and to retrieve her belongings.  She arrived at about 8.00 pm that evening, bringing with her a six-pack of vodka UDLs.  She found the appellant and the deceased drinking beer.  They purchased a cask of wine which they consumed before retiring for the evening at about 10.30–11.00 pm.  The appellant did not “look intoxicated” and Ms Russell did not recall him “slurring his words”.  The couple had sexual intercourse.  At about midnight, the appellant said that Chris MacFarlane had telephoned her on her mobile phone.  Ms Russell noticed that the appellant was “getting agitated and … angry”.  Under the pretext of going to the toilet, Ms Russell left the house and drove off in her car.  As she was leaving the house, she saw the deceased asleep on his bed.

1. At about 8.30 am the following morning, Ms Russell noticed that her telephone was dead.  She put it on a charger and turned it on.  She then received a telephone call from the accused who said, “My father has had a heart attack, is on his death bed, can you please pick me up I’ve got to get back to Yeppoon and fly out”.  Ms Russell agreed to the request.  After the call, Ms Russell checked her telephone and found “a couple of text messages off (sic) Peter”.  One message said, “Spunky, I’ve fucked up, I’ve just caved Paulie’s head in.”  Another message was, “I need to talk. If you talk to me, you’ll be able to understand.” 

1. Ms Russell drove to the deceased’s house at 10.30 am on Thursday 28 January.  On meeting the appellant, she asked him where the deceased was and was told “Jenka picked him up”.  Bjanka was the girlfriend of the deceased’s son.  The appellant told Ms Russell that he “just wanted to go to Yeppoon so he could organise his clothes to fly down to see his dad”.  She took the appellant to his son-in-law’s place of work in Yeppoon.  Ms Russell noticed no sign of injuries on the appellant.

1. Ms Russell’s next contact with the appellant was on Monday 1 February, when the appellant telephoned her.  He said, “I fucked up, Spunky. I’ll write you a letter to explain”.  Ms Russell inquired, “Love, what’s going on?”, to which the appellant responded, “I’ll see you in the spiritual realm.”  The following day, she received a letter from the appellant headed “To My beutiful (sic) XX”:

“I wasn’t honnest with you when I got you to pick me up from gladstone, It wasn’t me dad etc. I mentaly snapped again when you Left. I more than hurt Pauly then I freaked out. The smell & Taste in the air, I’d never forget, da Last few days I been tryn to work-out if it really happened or not & been praying to god for guidense. Since that night at clermont (which I still say I never did wrong to anybody, simple protected you) my brain & thourts have never been da same. It’s now monday & Todays da day I’m eigthter going to hand myself in or most Likely going to end this human Life. fuck it. at least my children can Live in peice without putting up with me whilst in Jail. If you not hear from me after tonight tell da thilth my body will be in blee boat shed nxt Ross crk brigde… I pray that you & I oneday will meet again in different relm.”

1. Ms Russell immediately took the letter to the police.

Mr Skinner’s evidence

1. Mr Noel Skinner was a friend of the deceased.  He had arranged with the deceased to move into one of the bedrooms in the deceased’s house, but had not done so at the time his intended bedroom was occupied by the appellant and Ms Russell.  When he went to the house to leave some furniture and “gear” on Wednesday 27 January, he saw the deceased and the appellant “sitting out the back having a couple of beers”.  When he visited the house again at about 3.30 pm on Friday 29 January he found that a key had been broken off in the front door lock and that the back door was unlocked.  He walked into the deceased’s bedroom and noticed a doona on the floor, but did not disturb it.  He concluded that the deceased was not at home. 

1. Mr Skinner sent a text message that day to the appellant who texted back, “Paul was with some redhead girl.”  On Saturday 30 January, Mr Skinner again went looking for the deceased.  On entering the deceased’s bedroom, he noticed a strong smell.  When he disturbed the doona on the floor he found the deceased’s body under it and immediately contacted authorities. 

Mr Goodger’s evidence

1. Mr Samuel Goodger was a partner of the appellant’s daughter.  He was at work on 28 January 2010 when the appellant came to see him.  He did not observe any injuries on the appellant who told him, “I’ve done something” or, “I’ve done someone over.”  When they were transferring goods from Ms Russell’s car to Mr Goodger’s, the appellant said again:

“I’ve done someone over while I was in Gladstone and he’s under a doona. You’ll hear about it on the news in the next couple of days… You’re the man of the family now; you’ve always done good by my daughter… Look after [her].” 

1. Mr Goodger received a telephone call from the appellant on 1 February 2010 at about 2.18 pm in which the appellant said:

“Sam, listen to me. Do it now. Fuck work. Just leave. Just do it now. This is real. Just do it. I tried to ring [my daughter] but she’s not answering. If they ask about the other day, say that I was rambling on…. I’ve killed my best mate, I’m facing two life sentences… No, watch the news, it will be on the news… This is real, Sam, just hurry up and do it now…Have a drink for me, watch the news, it will be on the news…”

1. In cross-examination, defence counsel asked if the words used by the appellant when he came to Mr Goodger’s place of work may have been, “I’ve done something. I think I’ve killed my best mate,” as opposed to, “I’ve done someone over,” Mr Goodger responded, “Possibly.”

Ms Bacon’s evidence

1. Ms Bacon, the appellant’s daughter, received a text message from her father at about 6.48 am on 28 January, “Bub, it’s dad, please phone me, so my other phone, extremely urgent.”  In the course of the ensuing telephone conversation, the appellant said:

“Because I’ve done something, I’ve killed my best mate in Gladstone. I’m going for two life sentences, and I can’t do it… I’m about to do myself in. I’m at Cawarral.”

1. On 1 February the appellant’s daughter received a phone call from the appellant who said, “I’ve killed my best mate in Gladstone”.  She asked, “Why did you do it?” and the appellant replied, “I don’t know. Maybe because I got the axe in my head. Anyone I get close to, I hurt.”

The medical evidence

1. Dr Buxton, a forensic pathologist, conducted an autopsy on the deceased on 2 February 2010.  The deceased, who was 45 years old, weighed 63 kilograms.  Dr Buxton found no evidence of any prior injuries of significance or of any pre-existing natural illness.  He noted a bruise on the left side of the forehead, just over the eyebrow ridge; a bruise above the left temple; a small split in the right lower eyelid; a large split to the right eyebrow; a quite prominent bruise to the left side of the head above the ear; bruising in the soft tissues inside the lip and cheek; blood within the left inner ear; and a significant fracture to the bridge of the nose with bone shards pushed from left to right. 

1. The blood in the deceased’s ear was consistent with the deceased having been punched or kicked.  There were three substantial bruises underneath the skin of the chest.  On the right side of the deceased’s body, the fifth to tenth ribs were fractured.  On the left side, the fifth to ninth ribs were fractured laterally and extensively.  Because of the fractured ribs, “the chest had stopped becoming a fairly rigid structure to enable breathing… [t]he left lung was collapsed”. 

1. Dr Buxton described the fractures as “full-thickness fractures… some of the ribs end were pushed into the chest”.  He described the fractures as “displaced” and said that it “takes a fair bit of force to displace the fracture[d] ends”, particularly as the deceased’s “bones were quite rigid, quite solid”.  There was a bruise to the mid part of the sternum which was “an indication of a violent thump to the chest”.  There was a small rupture of the spleen and a significant injury to the small bowel.  The bleeding from the bowel and spleen would have caused death, without any other injury, within two to three hours.  The combined injuries would have resulted in death within approximately one to one and a half hours.  The deceased would have suffered severe pain and he would have been fighting for breath.  Of the internal injuries, the doctor observed that “you don’t get these sort of injuries” even with “people falling on top of each other” in sport.  In his view, the injuries were likely to have been caused by kicking, stomping or “flopping”.  By “flopping” Dr Buxton meant a person dropping on another’s body with both knees.

Sergeant Cook’s evidence

1. Sergeant Cook, the chief investigating officer in the matter, attended the autopsy of the deceased.  After receiving information, he went to a boat shed at Yeppoon where he discovered the appellant hanging from a rope.  The appellant’s pulse was weak and he had stopped breathing, but he revived after resuscitation.

Ms Burke’s evidence

1. Ms Angela Burke had been in a relationship with the appellant which concluded on 1 January 2010.  On 1 February 2010, she spoke to the appellant on the telephone after speaking to someone else.  She then met him and drove him to a waterfront location.  In a short communication about the deceased’s death, the appellant “… expressed sadness… and thought that it was unfair; and when he’d left [the deceased], …[he] was asleep in a doona”.

1. It is now convenient to address the grounds of appeal.

Ground 1 – the evidence of the appellant’s post offence conduct, specifically the letter in which he wrote “I mentally snapped again” (“the letter”), and the text messages he sent to Ms Russell at 1.40 and 1.47 am on 28 January 2010 (“the text messages”), lacked sufficient relevance to a fact in issue, and were inadmissible

1. Defence counsel did not object to the admissibility of either the letter or the text messages.  However, counsel for the appellant contended that the letter and text messages were not relevant to any fact in issue on the trial.  It was contended that they added nothing material to the appellant’s admission that he killed the deceased.  They said nothing about the appellant’s intention and nothing in them supported an inference that the appellant had the requisite intention.  It was pointed out that in summing up the defence case, the trial judge observed that the evidence of the pathologist was that the deceased may well have been able to talk at the time the messages were sent and that to a person without medical experience it would not have been so obvious that the deceased’s condition was critical. 

1. It was submitted that the text messages and letter were “intractably neutral”; an expression used in the reasons of the Court in R v Ciantar.[1]  In the part of the reasons of Ciantar relied on by the appellant, the Court was considering whether an account given by the defendant to explain his elevated blood alcohol level and his flight from the scene of the subject accident could be used as evidence of consciousness of guilt.

   [1](2006) 16 VR 26 at [40].

1. The letter and the text messages (“the communications”), as counsel for the respondent submitted, were not relied on as evidence of consciousness of guilt.  They were relevant to the question whether the appellant had, or was capable of forming, the requisite intention to kill or cause grievous bodily harm notwithstanding his intoxication.  The text messages indicated that the appellant had the manual dexterity and intellectual capacity to formulate and send text messages within probably less than two hours of the killing.  The communications showed that he had sufficient recollection of events to recount them in some detail in the text messages and later in the letter.  The communications were also relevant to motive in that they provided an explanation for the conduct of the appellant and corroborated Ms Russell’s evidence as to the appellant’s angry reaction when the appellant adverted to the Clermont incident.

1. This ground lacks substance.

Ground 2 – the trial judge failed to properly direct the jury regarding the permissible use of the letter and text messages as evidence of post offence conduct relied on to establish consciousness of guilt of murder

1. The trial judge directed as follows:

“The other evidence I want to refer you to, to bear in mind in judging whether alcohol had deprived Mr Bacon of his capacity to form an intent as well as the ultimate question of whether he, in fact, formed the relevant intent are two pieces of evidence. One of the text messages at 1.40 a.m. and 1.47 a.m. They seem to demonstrate an apparent awareness of what has occurred, an appreciation of the person to whom he is writing and suggest a manual dexterity sufficient to use the keys of the phone.

The other piece of evidence is the apparent recollection that the accused has demonstrated later on, his recollection of the events on the night in question in statements that he’s made to others, particularly the letter to Zoe Russell, which is Exhibit 3.”

1. Counsel for the appellant argued that the above directions were insufficient as they failed to give an explanation of the kind said to be necessary in Edwards v The Queen.[2]  As explained in respect of ground 1, the appellant’s contention is misguided.  The communications were not relied on as establishing consciousness of guilt.

   [2](1993) 178 CLR 193.

1. In respect of the first two grounds, counsel for the respondent submitted, and I accept that, objectively viewed, there was a forensic advantage to the appellant in admitting the communications.  The reference in the letter to “snapping” and the reference to mental confusion in one of the text messages supported the defence argument that confusion was demonstrated in the appellant’s writings at the boat shed where he had attempted to hang himself.  Confusion was relevant to what could be made of the lies alleged by the prosecution and to the defence argument that the appellant had acted impulsively and violently whilst intoxicated, but without the requisite intent.  This ground was not made out.

Ground 3 – the other evidence of the appellant’s post offence conduct admitted at trial lacked relevance to a fact in issue and was inadmissible

1. The appellant argued that certain evidence of the appellant’s post offence conduct had been wrongly admitted as it was “intractably neutral on the question of whether the appellant had the requisite intent at the relevant time”.

1. The evidence identified by counsel for the appellant was conveniently described as follows in the summing up:

“The lies relied upon by the prosecution for this purpose are these; there are four of them: He told Zoe Russell in the course of the telephone call at 8.30 a.m. on the morning of the 28th that his father had had a heart attack and was on death’s door and so he needed to get to Yeppoon. Secondly, he told Zoe Russell when she inquired where the deceased was, that someone called Bjanca had picked him up. Thirdly he told Noel Skinner, in response to a text message inquiring about the deceased, that the deceased had gone off with a red-headed girl. And fourthly he told Angela Burke, in their long conversation, that it was unfair and that when he had last seen the deceased he, the deceased, was asleep under a doona.”

1. The trial judge gave an extensive and conventional direction about the use of lies which was not the subject of criticism.  In the summing up, he was at pains to explain to the jury to be careful to bear in mind that the conduct relied on by the prosecution was not attributable to knowledge of the lesser offence of manslaughter.  In that regard, his Honour said:

“Now, the prosecution argue that, taken in the overall context of the case, these are untruths that cannot be explained by remorse, panic or knowledge of the manslaughter offence. Aspects of other matters, such as the abusive terms in the letter in the boatshed, the pulling of the doona over the body, knowing that it would decompose there, the introduction of a fictitious third party at the scene, the prosecution say are all inconsistent with remorse.

Actions of concealment and lying over days, rather than minutes or hours, are said to be inconsistent with panic or, it was argued, pointed to the accused having a realisation that he had indeed formed an intent to kill at the relevant time.

Now, I’m going to warn you about using this evidence. Be very careful what weight you give to it. It’s very difficult where the background is that there is an admitted, serious crime already involved.

…

And fourthly, you must be satisfied that the lie was told because the defendant knew that the truth of the matter would implicate him in the commission of the offence of murder and not the lesser offence of manslaughter, the defendant must be lying because he’s conscious that the truth could convict him.

…

Any lie cannot be used as consciousness of guilt of the offence of murder if the lie was told to conceal involvement in the lesser offence of manslaughter.

That is the defence point, that is all that the defendant doing is seeking to paint himself in a better light with his friends and family by some of these statements.

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

1. Counsel for the respondent contended that the impugned evidence was not intractably neutral and was part of the body of circumstantial evidence relied on by the prosecution.  The trial judge relevantly said in the summing up:

“Similarly, the prosecution asks that you draw an inference from the accused’s post killing conduct. They point to these matters: He did not seek help, he shut the cupboard door where there were bloodstains within the cupboard, he concealed the body under a doona, he shut the bedroom door, he left the scene, went to Yeppoon, then he tried to hang himself.

Bear in mind that before you can use this conduct as indicative of guilt you will first have to find that the defendant acted this way because he knew he was guilty of the offence charged and not for any other reason. So again, it must point to murder, not manslaughter.”

1. The trial judge’s instructions, with respect, were correct and the respondent’s argument must be accepted.  The evidence complained of must not be looked at in isolation.  When properly considered with all the other evidence (including, for example, the evidence of the ferocity of the attack; the callous way in which the deceased was left to die; the statement that the appellant “mentally snapped”; and the reference to “two life sentences”), it cannot be regarded as irrelevant on the issue of intent.  Arguably, it gave rise to an inference that the appellant was conscious of the fact that his conduct had been of the utmost gravity; much worse than an unintentional drunken killing.  It was also arguable that the conduct was more consistent with the actions of a person who had killed intentionally rather than accidentally.

Ground 4 – the evidence of the events of August 2006 and 25 January 2010 were irrelevant and inadmissible

Ground 5 – the trial judge failed to adequately direct the jury regarding the permissible use of evidence of the events of August 2006 and 25 January 2010

1. The trial judge held the events of 25 January 2010 admissible on the basis that the prosecution was entitled to have the phrase “snapped again” put into context.  His Honour said that it was the appellant’s explanation of what had occurred and, if Ms Russell’s evidence were to be accepted, it explained the appellant’s conduct on 25 January. The evidence was relevant to whether the appellant was the aggressor and whether the partial defence of provocation had been negated.  It also provided an explanation of what occurred at critical times.  The trial judge concluded that as the events of 25 January were admissible, it followed that evidence of what happened in August 2006 in Clermont was also admissible.

1. Counsel for the appellant submitted that the statement, “I mentally snapped again when you left.  I more than hurt Pauly then I freaked out” is a complete statement and is not inextricably linked to one or more series of acts of domestic violence against Ms Russell.  According to the submission, the reference to Clermont does not require contextualisation in order to understand the simple statement, “Since that night at Clermont… my brain and thourts (sic) have never been the same”.  “Clermont” is not the operative concept in that sentence and the jury required no elaboration of it.  Evidence of the events of August 2006 was not necessary to enable an understanding of the letter’s meaning to be formed.

1. The argument continued as follows.  The admitted evidence of prior events and conduct did not negate provocation, nor did it establish that the appellant was the aggressor.  It was accepted that the appellant and the deceased had a good non-violent relationship.  The evidence of prior events and conduct by the appellant towards his girlfriend did no more than reveal bad character.  It had no bearing on the actions of the deceased at the material time and did not render the appellant incapable of being provoked.  Despite the trial judge’s directions as to the use that could be made of the subject admitted evidence of prior conduct, impermissible propensity reasoning is the only conceivable use to which it could be put.

1. The general principle is that, absent some specific exclusionary rule of evidence, if evidence is relevant it is admissible.[3]  Gleeson CJ stated the relevant principles as follows in HML v The Queen:[4]

“The basic principle of admissibility of evidence is that, unless there is some good reason for not receiving it, evidence that is relevant is admissible. Evidence that is not relevant is inadmissible; there is then no occasion to consider any more particular rule of exclusion. Reasons for not receiving relevant evidence may relate to its content, or to the form or circumstances in which it is tendered. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.” (citations omitted)

[3]Smith v The Queen (2001) 206 CLR 650 at 653 [6].

[4](2008) 235 CLR 334 at 351.

1. As counsel for the respondent pointed out, the appellant himself made a connection between his offending conduct and the Clermont incident in a telephone conversation with his daughter.  Without evidence of what took place at Clermont, the reference to the appellant having “got the axe in [his] head” would not be fully comprehensible.  Nor would part of the letter from the appellant to Ms Russell which I have concluded was relevant and admissible.  As the message on the telephone, on the evidence of Ms Russell, triggered a reaction from the appellant and may have provided a motive for the killing or an explanation of its genesis, it would not have been sensible or appropriate to deprive the jury of an understanding of what Ms Russell and the appellant were talking about at relevant times.  To exclude the evidence would have been to invite speculation.

1. The evidence was also relevant to provocation which remained a live issue until after the close of the defence case.  It tended to show that the attack on the deceased was prompted by matters connected with Ms Russell rather than by any conduct of the deceased.

1. The appellant further contended that the trial judge’s direction in respect of the evidence now under consideration was inadequate and was also erroneous in directing that the evidence of the events of 25 January 2010 could be used as evidence of the appellant’s state of mind at relevant times.  It was submitted that the evidence was “admitted for the sole purpose of contextualising the phrase ‘I snapped again’, which in turn was deemed to be circumstantial evidence going to the appellant’s state of mind”.

1. The following is the relevant part of the summing up:

“Now, you have heard in this trial, evidence from Ms Russell that the [appellant] had choked and struck her on the 25th of January 2010, and so two days before the killing of the deceased. Normally such evidence would never be led in a trial like this because it would normally be logically irrelevant to what happened two days later on the 27th of January between the accused and a different person.

It was permitted to be led here for a very limited purpose. That is, to put before you a possible explanation for the phrase in the letter that the accused wrote to Zoe Russell and that she received on the 2nd of February, apparently seeking to explain the killing of his friend, Paul Karran.

The phrase was, ‘mentally snapped again’, with a reference a little later in the letter to ‘Clermont’. It was to put that phrase into possible context that you heard about the Clermont incident many years before, and you heard about the events of the 25th of January. It is a matter for you whether it assists or not in providing that context.

My concern is to ensure that you understand what you may not do with this evidence. Evidence of bad character must not be used to strengthen the prosecution case against the [appellant]. Indeed, if you do not accept that the [appellant] is a person of good character the law requires you to put all consideration of character out of your minds in determining whether you are satisfied beyond reasonable doubt that the [appellant] is guilty of the crime charged.

If you find that the [appellant] did choke and strike Ms Russell, and that is a matter for you, you may not seek to draw some inference from that evidence that because the [appellant] choked and struck Ms Russell that he is therefore a person of bad or violent character, and so more likely to commit a crime or be a murderer. In other words it would be quite wrong for you to say, having heard that evidence, that the [appellant] is the sort of person likely to have committed the offence of murder. Whether he has or not depends on a logical analysis of the evidence that touches on the issue of intent.

This evidence of the events of the 25th of January may go to assist you in making a finding as to his state of mind, or attitude, at the crucial time, but that is all it does. You have heard the prosecution theory; it’s a matter for you whether you accept it or not. If you accept this hypothesis, you may use it only as another circumstance that the prosecution points to in supporting their theory of the case.”

1. The reference to the prosecution’s “theory of the case” in the paragraph immediately above concerns the submission made by the prosecutor to the effect that the deceased bore the brunt of the appellant’s anger and aggression triggered by his recollection of the Clermont incident coupled with Ms Russell’s sudden departure.  Arguably there is a degree of inconsistency between the second and final paragraphs of the above quotation.  However, it is plain enough from the final paragraph that the judge was directing that although permission to lead the subject evidence was given for a particular reason, the evidence could also be used in the assessment of the appellant’s state of mind at the critical time.  The trial judge was right to so direct for the reasons given above.

1. The direction concerning “bad character” was sufficient.  The jury were clearly instructed on the very limited use to which the subject evidence could be put.

1. Grounds 4 and 5 were not made out.

Conclusion

1. For the above reasons, I would order that the appeal be dismissed.

1. WHITE JA: I have read the reasons for judgment of Muir JA and agree with those reasons and the order which his Honour proposes.