R v Burrows

[2003] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4 of 2002

THE QUEEN

v.

LAWSON JOHN BURROWS

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	SALE
DATE OF HEARING:	19 August 2003
DATE OF JUDGMENT:	21 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 130

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CRIMINAL LAW – Murder – Post-offence conduct in flight and disposal of murder weapon by applicant – Relied on by prosecution in proof of guilt – Jury properly directed by trial judge – Whether defence case put by judge to jury – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W.H. Morgan-Payler, Q.C. and Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas	Victoria Legal Aid

WINNEKE, P.: 

1. I will invite Charles, J.A. to deliver the first judgment in this matter.

CHARLES, J.A.: 

1. The applicant, Lawson John Burrows, pleaded not guilty in the Supreme Court at Sale on 8 October 2001 to a presentment which alleged that he murdered Christopher Shane Winward at Mallacoota on 12 August 2000.  After a trial lasting some six days, on 18 October the jury returned a verdict of guilty to murder.  A plea was later heard and on 21 December the judge sentenced the applicant to be imprisoned for 18 years and fixed a non-parole period of 14 years.  The applicant now seeks leave to appeal against conviction on the grounds that –

1.The judge erred in his direction to the jury in relation to flight and the disposal of the shotgun.

2.The judge erred in relation to the disputed fact of the journey taken by the applicant in his car shortly before the shooting in that

(a)       he failed to relate the facts to the issues;  and
(b)      he failed to relate the law to the facts.

3.The verdict was unsafe and unsatisfactory due to the cumulative effect of the following:

(a)       the errors identified in grounds 1 and 2;
(c)       cross-examination of the applicant by the trial judge;

(d)the absence of any direction by the trial judge to the effect that it is the answer rather than the question which is the evidence.

1. The Crown case was as follows.  Both Burrows and Winward had worked at the Abalone Fishery Cooperative from time to time over a number of years.  They were known to each other but not particularly friendly.  On Friday 11 August 2000, many of the residents of Mallacoota attended the funeral of a local woman.  After the funeral a wake was held at the “Mud Brick Pavilion and Shire Office” and thereafter a number of townspeople went to the Mallacoota Hotel in Maurice Avenue.  There was a band and a substantial crowd, including both Burrows and Winward, in the hotel.

1. Winward was in a happy and sociable mood, mixing with friends and spending time with his girlfriend, Claire Trebilco, who worked behind the bar at the hotel.  Both Burrows and Winward had a considerable quantity to drink during the course of the evening.  Burrows was drinking alone in the front bar.  The evidence was that he had “quite a few”, and that he “would have been drunk, but he was holding it okay.  He wasn’t staggering or slurring his words.”

1. Some time after midnight, while the band was playing, Burrows and Winward were seen arguing or exchanging words.  One witness, Glen Raymond Lamperd, said that Burrows was being aggressive and Winward was trying to tell him to go away.

1. Two other witnesses, Peter Robin Forrester and Matthew William Russell, said that at about 1.30 a.m. they saw a fight between Burrows and Winward.  Forrester said he saw Burrows push Winward on the shoulder, and the latter responded with three quick punches to Burrows’s face.  Russell said he saw Winward punch Burrows twice in the face.  Burrows then staggered away and was seen to be bleeding from the nose.  Forrester said that Winward moved towards Burrows, but the latter held up his hands and appeared to say “No more”.  He then walked off, muttering, and Russell described him as “a bit cheesed off”.  Claire Trebilco said she heard an altercation in the beer-garden at about 1.50 a.m. and then saw Burrows walking past the entrance to the public bar holding his nose.  As he walked away she heard him say something to the effect of “You will get yours”.

1. Burrows then left the beer-garden, crossed the road outside to a car in the street and drove away.  There was evidence that he had bought some beer in the hotel before he left.  After he drove off he passed a group of people who had been drinking in the hotel, and offered them a lift, which they declined.  He was then driving in the direction of his parents’ house, where he was then staying.

1. A short time later Burrows drove his car back from the direction where he was living, towards the hotel.  He stopped his car alongside the group to whom he had previously offered a lift but said nothing.  One of the group said that they were fine, and Burrows then drove off at high speed towards the town centre.

1. By 2.00 a.m. the hotel had closed.  At that time one of the staff, Amber Jade Owen, saw a person whom she could not recognise but who was presumably thought to be Burrows, walk past one of the windows towards the beer-garden and then back towards the road.  Shortly afterwards, Winward and Trebilco left the hotel and walked towards Trebilco’s car in the hotel car park.  They got into the car.  As Trebilco was about to drive off, she saw Burrows through the car’s left rear window, standing in the car park.  She said to Winward, “Lawson is there, it’s Lawson,” and she and Winward both got out of the car.  She then heard Winward say, “Do you want to have another go?” and saw him walking towards Burrows.  Trebilco then noticed that Burrows was holding a long-barrelled gun, which she described as looking like a shotgun, down beside his body, next to his leg and pointing towards the ground.  Winward was then about two metres away from Burrows.  As Winward moved forward, Trebilco saw Burrows quickly raise the firearm and heard a loud report, a shotgun blast, and Winward immediately dropped to the ground.

1. Trebilco said Burrows looked very briefly at the body on the ground, and turned and left the car park.  He was seen shortly afterwards driving his car in the direction of his mother’s house.  His mother later found a note on his bed with the words, “Despite what you hear I love you, I love you all.”

1. Winward was declared dead at 4.50 a.m. that morning.  His body had a gunshot wound on the left side of the neck which was bleeding profusely.  The shot had severed multiple arteries and damaged the spine.  In spite of the desperate efforts of two local doctors and police and ambulance personnel, there had been no hope of saving Winward’s life. 

1. Meanwhile Burrows had fled in his car into New South Wales.  The next day, Saturday 12 August, he was arrested in Merimbula by New South Wales police officers.  In his car were various items of clothing, including his own which had blood on it.  The gun was not in the car and was never found.

1. Burrows was interviewed by members of the Homicide Squad later that day.  He answered some questions but largely exercised his right not to answer questions.  He denied that he knew the deceased from working with him at the Abalone Fishery Cooperative and described his association with the deceased as “Just mutual friends, I suppose”.  He said he drank “copious amounts” of Jack Daniels whisky and beer that night, and that he had spent $150.

1. An autopsy on the body of the deceased was performed by Dr Matthew Joseph Lynch, who gave evidence that the wound in the neck of the deceased was consistent with a gun discharging at a range of between one foot and five feet.  Senior Constable Henry James Glaser, a firearms expert, calculated the range from which the fatal shot was fired as not less than half a metre and not greater than 1.5 metres.

1. The applicant gave sworn evidence.  He said that when he left the hotel he was “pretty merry” but not staggering.  He recalled exchanging words with Winward during the evening, but he did not think anything of it.  He said he left the hotel at about 1.30 a.m., and saw the group of four people on the road to whom he offered a lift.  He said there was no blood on his face at this time.  He then drove to two or three friends’ homes and went to knock on the door of Kevin Jackson’s house.  When there was no answer he decided to return to the main street to look for the “after closing” party.  He again saw the group of four people, who had stopped, and was told they were all right.  He said he then returned to the hotel. 

1. The applicant said he went to the rear bistro doors of the hotel.  At this point Winward came out through the door and told the applicant “where to go”.  Winward, he said, became aggressive.  The applicant said he went to put his hand on Winward’s shoulder, intending to say, “No need for that,” when he was punched by Winward three times in the head.  He said he made no attempt to strike Winward, Instead he put up his hands and backed away.  He then realised his nose was bleeding and left the premises.  He agreed he may have said “You’ll get yours” or “I’ll get yours.”

1. The applicant said he then walked round to his car, cleaned up his bloodied nose, drank from a half-full bottle of Jim Beam bourbon whisky which was in the car, and ate the remains of a pizza he had purchased the previous evening.  The applicant said he had placed his pump-action shotgun on the back seat of his car earlier in the day because he thought if he finished work early he could go to a friend’s farm and shoot a couple of rabbits.  The shotgun was in very poor condition and slightly rusted.  The gun had last been used about eight weeks earlier and he thought it was unloaded. 

1. About ten to fifteen minutes after Winward struck him, the applicant saw him and Trebilco walking towards the hotel car park.  He wanted to speak to Winward.  He picked up his shotgun, carrying it, he said, to deter Winward from lashing out at him again.  He said he had attempted to check if it was loaded by pumping the slide action but it was jammed or not working properly and he presumed that it was empty anyway.  He did not check the safety catch.

1. Before he reached them, Winward and Trebilco were already seated in their car.  The applicant said he realised it was pointless to continue further and turned to leave.  Winward then stepped out of the car and said “Do you want to have another go?”  The applicant said he just stood shaking his head, but Winward came out to the end of the vehicle, looked at him, shook his head, and then ran towards the applicant.

1. When Winward was about seven or eight feet away the applicant raised the firearm to pass it to his other arm;  he said in evidence that he intended to “stockwhip” Winward with the gun.  Winward, however, grabbed the firearm and it discharged.

1. The applicant said he “freaked out”, went back to his car, lit a cigarette and drove away.  He believed he had the shotgun with him.  He was, he said, heavily affected by alcohol.  He said he did not know what had happened to the gun, or the extent of the injury to Winward.  He drove out to the main highway, and later turned off and drove up a bush track where he stopped.  He went to sleep in the car, and woke up at about 9.00 a.m. on Saturday morning.  He looked for the gun in the car, realised it was not there, and decided to drive to Merimbula to see his former partner, before going to the police.

1. When the prosecutor opened the case to the jury, he referred to the fact that the applicant had fled the scene of the shooting and disposed of the weapon somewhere where investigators had not been able to find it.  He relied on these facts in support of the Crown case that the applicant had caused the death of the deceased by a conscious and voluntary and deliberate act, and that he intended, at the least, to cause really serious injury to Winward.  Defence counsel, in his brief response, did not attempt to raise self-defence or provocation, but relied instead solely on the defence of accident.

1. The first ground of the application for leave to appeal raises the direction given by the judge in his charge in relation to flight and the disposal of the shotgun.  Although in the cross-examination of the applicant it was suggested that he had lied in his evidence on several occasions, these lies (if the jury found them to be so) were put by the prosecutor solely as to the applicant’s credit, and both counsel and the judge agreed that no consciousness of guilt direction was necessary as to lies.

1. When the judge came to deal in his charge to the jury with post-offence conduct, he said the following –

“         The Prosecution also relies upon two other matters as proof of guilt of murder by the accused.  The first is the fleeing by the accused from the scene when the unfortunate victim fell to the ground, dead, and the Prosecution also relies upon the disposal of the gun by the accused after the event.  The Prosecution says both that fleeing – what is called flight – and the disposal of the gun, are proof of the guilt of murder of the accused.

To use the flight of the accused and the disposal of the gun in the way that the Prosecution invites you to, you need to be satisfied that the flight and, separately, the disposal of the gun, relate to a material issue in the case;  and that the flight and, separately, the disposal of the gun sprang from a realisation by the accused of guilt of murder, not from some other cause.  Here, the Prosecution puts that the reason he fled the scene was he knew he was guilty of murder, and the reason he disposed of the gun was he knew he was guilty of murder.

To use that evidence of flight and disposal in the way the Prosecution invite you to, you need to be satisfied that there is no other explanation consistent with innocence for the flight or for the disposal, and that the accused only acted as he did, in fleeing and in disposing of the gun, because he knew the revelation of the truth would implicate him in murder.

The Prosecution has to prove, to rely upon flight and to rely upon disposal of the gun in the way it invites you to act, that those actions sprang from a realisation of guilt of murder, not from something else, such as panic, fear, concern that his actions were foolish and dangerous, but not murder;  fear of being wrongly accused of the killing.  And in the case of the disposal of the gun, also the Prosecution has to prove the disposal wasn’t just through disgust with himself, or panic, or fear, or reaction about what stupid things he had done, as distinct from consciousness of murder.  So the Prosecution has to prove those matters for you to rely upon flight and disposal in the way that I have defined it.”

1. Mr Thomas, who appeared for the applicant in this Court, argued that defence counsel at the trial had raised unlawful and dangerous act manslaughter as a possible explanation for post-offence conduct.  The prosecutor, when addressing the judge in the absence of the jury before the charge, had submitted that a “full four-piece Edwards[1] direction” for such evidence was required.  The submission continued that, a significant issue for the jury being manslaughter, the judge erred and that he should have specifically brought to the jury’s attention the possible factual bases for an unlawful and dangerous act manslaughter.  With the authority of his office the judge should then have directed the jury in relation to a possible explanation for the post-offence conduct based on manslaughter, which was not an “innocent” explanation, nor was it a “fear of being wrongly accused of the killing”.  The jury, so the argument ran, was inherently likely to reason that consciousness of guilt was a reason for the post-offence conduct, the issue being whether that conduct was equivocal in relation to murder or manslaughter.

   [1]Edwards v. The Queen (1993) 178 C.L.R. 193.

1. In support of these arguments reliance was placed on R. v. Arcangioli[2];  and R. v. White[3].  The Canadian cases have drawn a careful distinction, particularly where the post-offence conduct in question is flight, between situations where the conduct has no probative value, and others where the evidence of post-offence conduct is proper to be put to the jury, but the jury must be “properly instructed” to ensure that the evidence is not misused.  For example, in White, the Court said[4] that –

“It has been recognised, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error.  As the Court observed in Arcangioli, the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt.  In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation.  Alternately, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.”

Later the Court drew attention[5] to the consideration that –

“Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way:  in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence.”

[2](1994 111 DLR (4^th) 48 at 60.

[3](1998) 125 CCC (3^rd) 385 at 398-9.

[4]At [22].

[5]At [32].

1. In the present case both counsel and the judge took the view that the applicant’s conduct, consisting of flight and disposal of the weapon, was relevant and had probative value.  Mr Thomas did not seek to argue the contrary.  The question was simply whether the jury had been properly instructed.  This is, I think, the correct issue between the parties since, whereas flight alone might have been incapable of supporting an inference of guilt of murder, when coupled with disposal of the shotgun it was certainly capable of doing so.  It was much less likely that the applicant would have disposed of the shotgun in panic, embarrassment or fear of false accusation if the killing had been accidental. 

1. The judge accordingly charged the jury in the manner set out above.  Mr Thomas’s complaint is that when the judge told the jury that before using flight and disposal of the gun as proof of murder they must be satisfied that these actions sprang from a realisation by the applicant of guilt of murder and that there was no explanation for the actions, such as panic, fear, concern that the actions were foolish and dangerous or fear of being wrongly accused of killing, his Honour did not as well expressly include mention of manslaughter (or the fact that the applicant was aware that he might have acted unlawfully and dangerously).

1. The judge, with respect, structured his charge on this issue very carefully.  His Honour first gave the jury the elements of the crime of murder and then dealt with intoxication and the capacity of the applicant to form the intention to kill or cause really serious injury.  His Honour then dealt with post-offence conduct as evidence of guilt of murder.  The judge repeatedly limited use of post-offence conduct in this way to the situation where the jury were satisfied that the applicant’s actions sprang from a realisation of guilt of murder.  Immediately thereafter his Honour carefully charged the jury in unimpeachable terms as to manslaughter, dealing with the essential differences between murder and manslaughter.  The jury had, on the judge’s directions, to be satisfied beyond reasonable doubt that the conduct of the applicant sprang from a realisation of guilt of murder, and if they were not satisfied that any other explanation had been excluded, they were not entitled to use the applicant’s post-offence conduct as evidence of his guilt of murder.

1. In my view the judge tailored his charge on this issue impeccably to the circumstances of the case.  I should add that, for the reasons I have already given, I do not think the post-offence conduct could have advanced the prosecution case of manslaughter.  Furthermore there was no exception taken by defence counsel to this issue, which supports the view that counsel in the atmosphere of the trial saw no relevant impropriety or unfairness in the judge’s charge. 

1. I should add that the instruction given by the judge in the present case is substantially more forceful than the direction given by the trial judge which was held adequate in R. v. Woolley[6].  In Woolley the Court of Criminal Appeal (Murphy, Marks and Gobbo, JJ.) said[7] that –

“It has been the practice to direct juries in cases of false denials or flight or similar cases in terms of whether the evidence in question demonstrates consciousness of guilt of the offence charged.  The reference to the offence charged is an obvious and usually convenient way of relating the conduct to the material wrongdoing, as opposed to some other wrongdoing.  There is no authority for the proposition that the accused must be found to have acted out of a consciousness of guilt of a particular offence where the wrongdoing may cover a number of possible charges.  Thus, where a serious assault has taken place, it would be fanciful to make possible resort to the conduct in question by the jury depend on whether the accused had a consciousness of guilt of particular offences such as causing grievous bodily harm, or actual bodily harm or common assault.  It would in our opinion be equally fanciful to require as a precondition to possible use of the conduct that the accused had turned his mind to particular alternatives such as murder or various categories of manslaughter.”

See also R. v. Rice[8].

[6](1989) 42 A.Crim.R. 418 at 422-3.

[7]At 423-4.

[8][1996] 2 V.R. 406 at 415-416.

1. Ground 1 therefore fails.

1. The second ground relates to the journey made by the applicant in his car shortly before the shooting of the deceased and involves the only disputed issue of fact at the trial, apart from the critical question of the murder itself.  The Crown alleged that the applicant had driven then to his home to get the shotgun that was used to shoot the deceased and the importance of the issue in the prosecution case was said to be demonstrated by the following questions asked in cross-examination of the applicant –

“Q.You deny going and getting the gun after you were punched, don’t you?---Yes.

Q.Yes.  Let me suggest to you you falsely deny it, because you know darned well that to admit to going and getting the gun is tantamount to admitting to having decided to shoot Shane Winward, isn’t it?---Yes.

Q.Yes.  So one thing you can’t do is to admit to going and getting the gun;  correct?---The gun was already in the car.”

The applicant thus denied the Crown’s allegation that he had gone to get the gun at this time.  The timing of the car journey involved was significant.  There was evidence that the shooting of the deceased had occurred at approximately 2.10 a.m. on the Saturday morning.  Claire Trebilco said she had seen the applicant walking past the public bar door holding his nose with blood dripping from it at approximately 1.50 a.m.  If there was a gap of 20 minutes before the shooting, the applicant would have had sufficient time to drive to his house to pick up the gun and return to the hotel.  If the gap was less than 20 minutes, there would probably not have been time.  It was not essential to the Crown case that the jury be persuaded that the applicant had gone to pick up the gun, because the jury would have been entitled on the evidence otherwise available to be satisfied that the applicant acted with murderous intent in shooting the deceased.  But if the jury were satisfied that the applicant had gone to get the gun, they must, as the cross-examiner suggested, have had little or no doubt that the applicant had acted with murderous intent.

1. The prosecutor did indeed submit to the jury that the applicant after having been punched went to get his gun and came back in the intervening 20-minute gap.  That is clear from the judge’s charge.  Unfortunately the addresses of both counsel were not transcribed or made available to this Court.  Mr Thomas however submitted that the judge in his charge made no reference to any submission of defence counsel as to the timing of the journey or other relevant evidence.  Accordingly, he argued that the jury should have been directed that it was necessary for the Crown to satisfy the jury beyond reasonable doubt that the disputed car journey had taken place after the fight in the car park, and that this was an indispensable basis for an inference of guilt.  He submitted that the trial judge had not put the defence case fairly to the jury, the defence being that the evidence did not support that there was the opportunity for a journey after the altercation in the car park between the applicant and the deceased.  Mr Thomas submitted that the judge should have said to the jury that “the Crown case was that there had been a furious journey to get the gun, and you [the jury] must be satisfied beyond reasonable doubt that the applicant made such a journey;  if you cannot find the journey was taken at this time then you must consider again what the accused man has said in his evidence, because the Crown relies on the accused having made that journey as evidence of his rage and murderous intent.”  Reliance was placed on R. v. Wilkes and Briant[9] and R. v. Schmahl[10].

   [9][1965] V.R. 475.

   [10][1965] V.R. 745 at 747-8.

1. The judge had, in his charge, taken the jury in detail through the evidence given by the applicant, reciting the applicant’s evidence that he had the gun lying in the back seat of his car and that it had been there since earlier that day, because he thought he might go to a friend’s farm to shoot rabbits.  The judge put all of the relevant evidence in considerable detail to the jury.  No exception on this issue was taken after the charge had concluded and Mr Thomas fairly conceded that the absence of any relevant exception made the ground a very difficult one to argue.  Any such failure by the judge in putting the defence case could readily have been cured by a redirection and, again, the fact that no exception was taken suggests that counsel present saw no relevant unfairness in the charge.  The judge during the charge summarised all of the relevant evidence in considerable detail.  His Honour did, I think, with respect, also put in clear terms the arguments of defence counsel to the jury.  The jury had recently heard both addresses and the judge made it clear that he did not propose to recite the addresses in detail.  The evidence, taken as a whole, supported the prosecutor’s submission that there was adequate opportunity for a journey by the applicant to his home to get the gun between the earlier assault and the shooting.  Whether such a journey had taken place was a matter for the jury to determine.

1. In my view ground 2 also fails.

1. The third ground asserts that an accumulation of errors made the verdict unsafe and unsatisfactory.  In opening this ground, Mr Thomas put it that grounds 1 and 2 were the major part of ground 3, and the other matters relied on were not major issues in themselves, and would not alone have justified the setting aside of the verdict.  Grounds 1 and 2 have, of course, both been rejected.

1. The next matter relied on was based on the fact that the judge had asked questions of the applicant at the end of the cross-examination by the prosecutor.  The argument was that the cross-examination had been a searching one, indicating disbelief of the accused, and that an imbalance had been caused by the judge’s questions following which showed a continuing disbelief on the part of the judge.

1. There is, I think, nothing in this point.  The judge’s questions followed a cross-examination which was searching but comparatively brief.  The questions were short and not particularly detailed.  It seems to me that the judge simply picked up and pursued in questioning a couple of points which had been dealt with in evidence-in-chief.  The judge’s questions did not result in any objection or comment from defence counsel.

1. The final point raised was the absence of any direction by the judge to the effect that it is the answer rather than the question which is the evidence.  There is nothing in this point also.  The judge had told the jury at the start of the trial that the

evidence was to come from the witnesses and any exhibits.  The evidence was then summarised in detail in his Honour’s charge, reference being made both to the questions asked and the answers given.  No exception was taken by defence counsel to this supposed gap in the charge.  In my view it cannot be said that it is always imperative that the judge warn the jury that it is the answer, rather than the question, that provides the evidence, although no doubt there will be some cases where such a direction is of importance.

1. Ground 3 also fails.

1. The application for leave to appeal against conviction should be dismissed.

WINNEKE, P.: 

1. I agree with Charles, J.A. that the application for leave to appeal against conviction should be dismissed.  I wish, in relation to ground 1, to sound my own echo to what his Honour has said.

1. In this trial the only issue was whether the applicant deliberately and with relevant intent fired the shot which killed the deceased.  The prosecution alleged that he did;  the applicant said that it was an accident.  As part of its proof of this issue the prosecution relied upon the evidence of the applicant’s conduct after the shooting;  namely, the fact that he fled from the scene and thereafter disposed of the weapon so thoroughly that it has never been found.  This conduct, so the prosecution alleged, was sufficiently cogent and unequivocal to be probative of the only issue remaining in the trial. 

1. The point in dispute in this appeal is not whether the evidence was probative but whether the judge’s directions to the jury were adequate to alert the jury to the way in which they could, and could not, use the evidence in their deliberations.  I am not in doubt that the learned judge’s directions were quite adequate and in

accordance with practice which is followed in this State.  The gist of the applicant’s submissions to this Court was that the judge should have told the jury specifically that the conduct of the accused after the shooting was ambiguous and could have stemmed from a realisation on his part of guilt not solely of the offence which was charged, but from a realisation of guilt of some lesser crime such as manslaughter.  But, in its essence, the judge’s direction not only conformed to the practice usually followed in this State, but did require the jury to exclude all possibilities justifying the accused’s conduct other than a realisation of his guilt of the crime charged.  Those directions, which have been referred to in the reasons for judgment of Charles, J.A., were - in my opinion - quite adequate to inform the jury as to how they could use the relevant conduct - and how they could not use it – in determining the one issue in dispute in the case.  Those directions were concise and, in their essence, told the jury that they could only use the evidence of that post-offence conduct if they were satisfied (meaning satisfied beyond reasonable doubt) that the conduct stemmed from a realisation of guilt of the crime which was charged (i.e., murder), and not from something else such as panic, fear, concern that his actions were foolish and dangerous but short of murder, fear of being wrongly accused in the killing.  The directions went on to tell the jury that this was the accused’s evidential response to the Crown allegation - namely, that he did not flee and dispose of the gun because he thought he might be implicated in murder;  but that he fled and disposed of the weapon because he panicked and was shocked and horrified at the unexpected event – i.e., he fled from his own foolishness.  Such directions are, as it seems to me, quite consistent with directions usually given when post-offence conduct is relevant and probative in murder trials.  Like Charles, J.A., I refer to R. v. Rice[11] and R. v. Woolley[12];  and also to R. v. Nguyen[13].  There is no rigid formula in accordance with which directions such as these are or can be given.  Each case does, and must, depend upon its own peculiar facts.

[11][1996] 2 V.R. 406 at 415-6.

[12](1989) 42 A.Crim.R. 418 at 423-4.

[13](2001) 118 A.Crim.R. 479 at 489-90.

1. Appellate courts need to be careful to ensure that statements which they make in appeals, where directions such as those given in this trial are in issue, do not unnecessarily confine trial judges in cases where post-offence conduct might be relevant and probative.  The significant matter is to recognise that each trial judge should be free to give such directions as are necessary to meet the circumstances of the trial over which that judge is presiding.  The directions given in this case were, in my view, adequate to conform to the facts and issues relevant to this case.  The fact that his Honour’s directions were seen to be adequate by those immersed in the trial is confirmed by the lack of any exceptions taken by counsel to this aspect of the charge.

1. In respect of grounds 2 and 3, I fully agree with Charles, J.A.’s reasons for rejecting them. 

1. I should note, in conclusion, that, although the applicant had sought leave to appeal against the sentence imposed upon him by the trial judge, during the course of the appeal further leave was sought, and granted, to abandon that sentence application.

CHERNOV, J.A.: 

1. I also agree that the application for leave to appeal against conviction should be dismissed, for the reasons given by Charles, J.A.  I also agree with the observations of the President as to the judge’s directions concerning the applicant’s post-offence conduct.

WINNEKE, P.: 

1. The formal order of the Court is that the application for leave to appeal against conviction is dismissed.