R v Ibrahim

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 154 of 2001

THE QUEEN
	v.
DAVID IBRAHIM

---

JUDGES:	VINCENT and EAMES, JJ.A. and ASHLEY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2003
DATE OF JUDGMENT:	18 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 180

---

CRIMINAL LAW – Murder – Evidence – Lies and post-killing conduct – Whether lies and conduct relied on by prosecutor as evidence of consciousness of guilt – Whether directions were required – No miscarriage of justice – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.J.C. Silbert	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Lewenberg & Lewenberg

VINCENT, J.A.:

I agree that this application for leave to appeal against conviction should be dismissed. I do so for the reasons advanced by Eames, J.A. in his judgment.

EAMES, J.A.:

On Sunday 27 September 1998 at 11.45 a.m. a Ford utility driven by the applicant came to a halt with a loud screech of tyres in Copernicus Way, Keilor Downs, a residential area. The noise attracted the attention of a number of residents in nearby houses who observed the events that followed and later gave evidence in the trial of the applicant. The utility had cut in front of a small sports coupe, the driver of which was Susan Chircop. Seated beside her was one Thomas Falzon. Susan Chircop was the sister of Carol Chircop, who had been in a volatile relationship with the applicant. The sports coupe was the vehicle of Carol Chircop, but, unbeknown to the applicant, had been borrowed by Susan on this day.

The utility came to a stop at right angles to the roadway blocking the passage of the sports car. The sports car was less than a metre from the utility. Witnesses gave evidence that the driver's side door of the utility was flung open and the applicant then got out and had in his hand an object which proved to be a loaded .25 Browning pistol. The observers said that he looked angry and that he ran towards the driver's side of the sports car and then fired four shots into the car. Two bullets went through the front windscreen and two went through the driver's side window and struck the driver, Susan Chircop. She had turned away from the shooter and the bullets went into her back. When the shots were fired the applicant was so close to his victim that gunshot residue landed on her clothing. Ms Chircop did not die immediately but attempted to escape by placing her foot on the accelerator and then she and the passenger turned the steering wheel to the left, causing the car to mount the kerb and drive around the utility. The sports car then drove diagonally across a vacant corner block and turned left into Lady Nelson Way. The car took a right-hand turn into Lipton Street and then turned into a vacant block. Ms Chircop was

dying and collapsed unconscious at the wheel. She died within minutes of the car then coming to a rest. Mr Falzon rushed from the passenger side door of the sports car and jumped a side fence into an adjoining property. He ran into the yard and pleaded to occupants of the house to hide him in the house. They refused him entry and he hid in the garden, instead.

When the sports car had veered around the applicant's utility, the applicant rushed back to his vehicle started it and mounted the kerb following the path taken by the sports car, apparently in pursuit of it. However, instead of travelling into Lipton Street, he turned right into Lionhart Avenue and was next seen at the home of Thomas and Margaret Prevolsek in Nepean Court, Taylors Lakes.

The Prevolseks were friends of the applicant and when he arrived at their house the applicant appeared to the Prevolseks to be very angry. He ran towards Mrs Prevolsek, who was outside the house, and said "Margie, Margie, I need a favour … I've just shot Carol … Hide me". Mrs Prevolsek said that she would get her husband, and the applicant said, "Wait a minute, I'm just going to get my guns". The applicant then followed her into the house and he was holding two pistols, one being the Browning .25 and the other a Tanfoglio .25. He said to the Prevolseks "You've got to do me a favour. I've just shot Carol. Can I put my car in your garage for an hour?" They said they did not want to get involved. The applicant was shaking and was very angry. He then put a magazine into the Tanfoglio pistol, put the barrel under his chin and shot himself, thereupon collapsing on the floor. Mr Prevolsek seized the guns and called the police and an ambulance. Later that day the bullet was removed from the head of the applicant and he was charged with the murder of Susan Chircop.

In the applicant's trial it was conceded by him that at all times he thought the driver of the vehicle was Carol Chircop, not Susan Chircop. Carol Chircop gave evidence in the trial that she had been in a relationship with the applicant but had separated from him in March 1998. She said that the relationship had been a violent one and she had been assaulted on occasions by the applicant and on a number of occasions he had threatened to shoot her. She said he was the owner of the .25 Tanfoglio pistol, which she had seen fired by him on several occasions. The day after they separated the applicant had been shot outside his Hillside home when both Carol Chircop and Susan Chircop had been present. Initially he told police that he did not know who had shot him but subsequently told police that it was the women’s father, Frank Chircop, who had done so. No charges were laid.

Carol Chircop had a child, Jake, by the applicant and notwithstanding their separation, they continued to meet for the purpose of Carol Chircop providing the applicant access to her son. According to Carol Chircop, on some of those occasions the applicant had threatened to shoot her. On Saturday 26 September 1998, the day before the death of Susan Chircop, the applicant was due to have access to Jake. When the applicant arrived at the agreed meeting place he said, according to Carol Chircop, "Tell your Dad his number is up. I'm coming after him and I have covered my arse by putting myself in a psychiatric hospital."

It was the Crown case that on the following day, the Sunday, the applicant was armed with weapons and was looking for Carol Chircop and her father, with a view to shooting one or other (or both) of them. Shortly before the confrontation in Copernicus Way, a person who the Crown alleged was the applicant, had travelled to a location in Dion Court, Keilor Downs, and had entered a property the back fence of which abutted the rear of the house occupied by Frank Chircop. Upon entering the premises in Dion Court, the person spoke to the two occupants and asked them if they would permit him to jump the back fence. They refused him permission and he left.

The Crown case was a particularly powerful one, with seven eyewitnesses who had observed the confrontation in Copernicus Way, none of whom saw a gun in the hands of the victim, although counsel for the applicant contended that their view of the car might have been obscured. Nine eye witnesses saw Falzon at the time when the sports car had finally come to a rest after it left the scene of the shooting, and he fled from the car. None saw a gun in his hand, either.

Mr Paul Hallman, a MICA paramedic with the Ambulance Service, attended the home of the Prevolseks shortly after the applicant shot himself. The applicant was conscious and gave his name but said he was not sure where he was and said that he had thought that he had shot himself. When asked if he had shot anyone else he said that he had shot “his wife” or “his wife Carol”. He was asked if he had shot anyone else and he said that he thought so.

On the day of the shooting Detective Senior Constable Daly of the Homicide Squad attended the Alfred Hospital where he met the applicant and later charged him with the murder of Susan Chircop. The applicant was placed under guard at the Alfred Hospital and later that day he asked Senior Constable Gordolo "Am I in trouble? Have I done something really bad?" Two days after the shooting, the applicant asked Senior Constable Owen to hand him a morning newspaper in which there was an article about the shooting. He said to Owen "Was that me?" The applicant said he had no knowledge of the shooting. The applicant at this time was spitting blood. Later that day the applicant said to Owen that he wanted to ask a favour of him which was "Would you shoot me and put me out of this misery?"

Senior Constable Glaser, a firearm expert, gave evidence that the Browning was a .25 automatic self-loading pistol, the trigger-pull of which was within normal limits. It had a safety catch and both grip safety and magazine safety which locks were all effective. The only way in which the gun could be discharged was by applying pressure to the trigger and to the grip safety simultaneously.

Evidence was called by the Crown concerning the psychiatric history of the applicant. Dr Fionnuala Dunne was in her first year as a consultant psychiatrist at Werribee Mercy Hospital when on 9 September 1998 the applicant was admitted as a patient, having been brought to the hospital by his mother and brother. He said that he wanted to end his life and attributed that to the separation from his wife five months previously and to a pending court case for trafficking cannabis. Two days later the applicant spoke to Dr Rhajan and said that he wanted to kill his "father-in-law". The hospital notes also recorded him telling a nurse that he wanted to kill his "ex de facto" before she took his son to Queensland. He was recorded also by the nurse as wanting to kill his father-in-law. Throughout the course of his admission on this occasion, he made other statements of his desire to choke his ex de facto and said that he had tried to strangle her previously. He was discharged on 18 September, Dr Dunne concluding that there was no evidence of any depressive illness but diagnosing him as having an adjustment disorder. Whilst at the hospital he had attempted self-harm on several occasions.

Two days after his discharge the applicant re-admitted himself, after having taken an overdose of tablets. He was once again very angry but was released and returned two days later and then again was discharged the following day. Dr Dunne said he would not have been discharged had he been diagnosed as having a major depressive illness or to be actively suicidal. On 21 September the applicant discharged himself and said that he was angry about being in hospital, and two days later advised Dr Dunne that he would not attend an appointment which had been arranged. On 24 September he failed to attend an appointment with Dr Rhajan. Dr Dunne rejected the contention put to her in cross-examination that her diagnosis was wrong and that the applicant was in fact suffering major depression. She rejected the contention that he was actively suicidal at the time she was dealing with him and said that although he had attempted suicide on 27 September, that had followed other events, which could explain it. Dr Dunne said however that she did not feel that the applicant had been feigning any of his symptoms. She accepted that when he was first admitted to Werribee Mercy Hospital he was then diagnosed as suffering from depression but she said an assessment made after nine days of his attendance at the hospital led to the conclusion that that diagnosis was not correct.

On 26 September 1998, that is, the day before the shooting, the applicant was taken to Royal Melbourne Hospital by his brother at about 7 p.m. He was seen by Dr Elizabeth Reid, a psychiatric registrar at the hospital, who made enquiries of his history from Werribee Mercy Hospital. The applicant and his brother left the hospital at about 8 p.m. Prior to his departure he had spoken angrily about his situation with Carol Chircop and her father and had said that the “father-in-law” had tried to shoot him. He said that he hated his life and had been in conflict with his ex de facto and her father for six months. He said that he had had an argument with his ex de facto that day at a time when access had been arranged with his son. Dr Reid regarded him as being angry rather than depressed and said that the applicant dismissed the idea that he would harm his ex wife or her father. Although his brother preferred him to have been admitted to hospital, Dr Reid declined to do so and instead provided the brother with details of the CAT team at Werribee Mercy Hospital, in the event that that was needed. Dr Reid said that she had diagnosed the applicant as being a man with an antisocial personality disorder who was currently in a crisis situation and made a further diagnosis of borderline personality disorder. She said depression was a less likely diagnosis.

The applicant gave evidence in his own defence and said that although initially he had no recollection of the day of the shooting, he had recovered some of his memory of the events as a result of undergoing sessions of hypnotism which commenced on 14 June 2000 with Professor Graham Burrows, the Director of Psychiatry at the Austin Repatriation Medical Centre.

The applicant gave a very detailed account of his relationship with Carol Chircop which commenced when he was aged 17 and she was 21. Their child, Jake, was born in 1993. He denied her allegations of violence save as to one occasion when he slapped her, and denied ever threatening to shoot her or pointing a gun at her. He alleged that he had been shot at in 1990 by Frank Chircop and had been scared of him from that time. He said that he came across the Tanfoglio pistol in 1996 when Carol Chircop returned after having lunch with her parents and said that she had got the gun from her father. The applicant said that he wrapped the gun and buried it outside their unit.

The relationship had become very strained in March 1998 causing Carol Chircop to leave the premises they had shared, and on the evening of her departure the applicant said that he had come across Carol Chircop driving a motor vehicle in which her father Frank Chircop was present. Frank Chircop got out of the car with a long-barrel shotgun and shot the applicant as he was running away. The police investigated and he initially did not tell them who had shot him but did so some weeks later. Carol Chircop saw him the next day and said that if he reported her father he would never see his son Jake again and they would kill him next time. A few weeks after the break-up, in March 1998, the applicant moved out of the house they had shared but continued to see Carol Chircop for the purpose of access to Jake. Over that period Carol Chircop continually threatened him, calling him a police informer and saying that he would be shot. On one occasion he observed guns on both passenger and driver’s side of a motor vehicle in which both Carol and Sue Chircop had been present. On another occasion of an access handover, where both Carol and Sue Chircop were present, Carol Chircop pulled a gun from her jacket and said "Don't push your fucking luck." The applicant said that each time he was threatened with a gun he rang Detective Clarke of Melton CIB and advised him.

The applicant described his admission to Werribee Psychiatric Hospital on 9 September 1998 and his attempts to commit suicide at about that time. He did not recall making any threatening statements concerning his wife and said that he never felt that he wanted to hurt either her or her father. He denied saying to Carol Chircop on 26 September that her father's number was up and that he had "covered his arse" by putting himself in the psychiatric hospital.

The applicant said that as a result of hypnotherapy sessions with Professor Burrows he had regained a memory of some of the events on Sunday 27 September 1998. He did not recall driving to the house which adjoined the rear of Frank Chircop's house. He did, however, remember driving towards St Albans to return a gun to its owner. That was a small black pistol which he had taken possession of a few months earlier and had buried. He did not recall when he retrieved it from where it was buried. He also remembered that on the day of the shooting he had a silver pistol with him. He had that because he intended to take his own life with it. Both guns had been buried in the laneway behind his mother's home and he could not recall retrieving either of them. He said it was his intention to return the Browning pistol to its owner before he committed suicide with the Tanfoglio gun, because he did not want the owner of that gun to hassle his family over it after his death. He said he had not known whether the guns were loaded or whether they worked. He knew nothing about safety catches. When asked about the bag of bullets that he had in his possession on the day of the shooting, he said he could not recall whether they came with the Browning gun. As to the owner of that gun he knew the person's name and address. That person lived close to the scene of the shooting and that explained him being at that location at the time of the shooting. He refused to divulge the name and address of the owner of the gun. The applicant said it was sheer coincidence that when he was driving to return the gun to this person he saw the sports car which he believed was being driven by Carol Chircop.

The applicant told the jury that when he approached the sports car he wanted to ask Carol Chircop why she had not picked up Jake from him as had been arranged. He said he was not angry and when he got out of the car he did not rush towards the other vehicle but walked towards it in a normal fashion. He said the Browning gun was not in his hand but was either in his pocket or his waistband and then as he walked towards the car, the driver of the vehicle raised her hand and he saw a gun in her hand and then "I didn't know what to do. I shit myself. I pulled a gun and I fired." He said he was trying to stop that person from shooting and killing him. It was not his intention to kill that person. He thought she was going to shoot him through the windscreen of her car. He thought it was Carol who was pointing the gun at him. He had an uncertain recollection that he had called out "Put the gun down." He said he had no doubt that he had seen a gun in the driver's hand and his recollection of that was as clear as a bell after his last hypnosis session. He thought that he had just fired twice but he did not remember much about that. So far as he could recall, after firing the two shots he jumped back into his car and drove off. His next recollection was waking up in hospital. He said that on the day of the shooting he had had no intention of harming anyone, apart from himself. He had no feelings of hatred or revenge towards Carol Chircop or her father.

In support of the contention that the applicant was suffering a major depressive illness at the time of the shooting and had been at the time of his prior admissions to hospital, the defence called Ms N. Lefkovits, a psychologist, and Professor Burrows. That evidence contested the diagnosis given to the Court by Dr Dunne and Dr Reid.

Additionally, evidence was called from Mr D.L. Stokes, a neuro psychologist whose opinion was that the applicant suffered from a memory disorder. Mr Stokes interviewed the applicant on 16 June 2000 at the request of his legal advisers. After performing a comprehensive assessment of the applicant's memory, he assessed the applicant as being a person of low average intelligence with an IQ of about 80, and diagnosed the applicant as suffering from what he called a secondary memory disorder, which meant that he had difficulty concentrating and registering information. He found on testing that in the quiet and calm conditions of the testing situation, the applicant could sometimes learn at a reasonable level consistent with his intelligence but that if anxiety interfered at any point, then his capacity to learn and acquire information dropped significantly. Mr Stokes agreed with the proposition that when the applicant was under stress, was pressured or was feeling anxious, it was likely that later he would not be able to recall "the precise events as they occurred" because he suffered a memory disorder which inhibited him from learning under anxiety. He added that would be effected in two ways: first, he might never register or acquire the particular events, but even if he did he might find difficulty recalling them later.

Ms Lefkovits said that she saw the applicant on 22 September 1998 for the purpose of supplying his then legal advisers with an assessment for his drug case. She diagnosed him after a session of one-and-a-half hours as suffering from severe depression. She said he mainly expressed fear of Carol Chircop and her father although he may have expressed some anger. At that time she considered that he was suicidal.

Professor Burrows said he had been asked by the legal advisers to the applicant to see whether there was any mental illness involved in the offences and also to consider the applicant's memory and the question whether the applicant intended to kill or to seriously injury anyone when he fired the pistol. He was provided with the records of the Werribee Mercy Psychiatric Hospital and the Royal Melbourne Hospital. Professor Burrows saw the applicant on six occasions commencing June 2000. He concluded at the first session that the applicant was suffering from a major depressive illness and that upon having a traumatic experience he had blotted it out. He raised with the applicant the possibility of him undergoing hypnosis. On the next interview, on 9^th June, the applicant said that some of the events had started to come back to him (without hypnosis). He could remember driving and he could remember going towards Taylors Lakes, (the suburb where the Prevolseks lived).

On the next occasion Professor Burrows' session was conducted in the presence of a defence barrister and also a solicitor. The session was video-taped and played to the jury and under hypnosis on that occasion the applicant remembered seeing a red car and seeing Carol and saying to her "Put it down", and he then explained, when asked, that what he had seen was a gun. When taken out of hypnosis the applicant said that Carol had pulled “something” out. A further session of hypnosis was conducted on 6 July and was also video-taped and played to the jury and on this occasion under hypnosis he said that he recalled going to return something to a friend and seeing the sports car but he did not recall if he cut the sports car off with his vehicle. He had jumped out of the car and was staring at it when the driver pulled something out which he could not make out but he got scared and fired the gun. She had been pointing "it" at him and upon being asked by Professor Burrows whether it was a gun, agreed. Professor Burrows saw the applicant again on 29^th June on which occasion he said that his intention had been to kill himself, not to murder anyone. Professor Burrows said that he had introduced the topic of self-defence in this session which was conducted under hypnosis. He finally saw him on March 2001 but not under hypnosis on that occasion.

Professor Burrows underwent substantial cross-examination and in his final address the prosecutor criticised Professor Burrows in trenchant terms. The witness agreed that recovered memory was a highly controversial topic within his profession and that a subject who was under pressure to produce memories tended to produce false memories, a tendency which was increased with multiple sessions. He agreed that some research findings suggested that hypnotised persons could be mistaken or might be deceitful. He agreed that there were some inconsistencies between what the applicant told him and what he had told the jury about the timing of his recollections. He acknowledged that there was a dilemma in assessing what the applicant actually recalled compared with what he had read in materials connected with the case.

In his final address the prosecutor submitted to the jury that examination of the videos of the hypnosis sessions showed that Professor Burrows had suggested things to the applicant, and the word “gun” had been uttered by Burrows, not by the accused, during his session. The witness, in cross examination, had agreed that he had been leading the accused at that point in that session, and also during discussions after it had concluded, but did not consider that that diminished the value of the session.

Dr John Grigor, a physician in psychiatry and forensic psychiatry, first saw the applicant at the request of his solicitors about a year after the shootings and then saw him three times more. He had been asked to provide a psychiatric opinion as to the applicant's mental state in the period leading up to the shooting and he concluded that the applicant suffered a major depressive illness at the time of the offence. In September 1999 when he first saw the applicant, he was told that the applicant had no recollection of the events of 27 September 1998. That remained the situation up until November 1999.

Nicholas Ibrahim, the brother of the applicant, gave evidence. He had been in a relationship with the deceased, Susan Chircop, which commenced in 1988. He gave evidence that he had been stabbed by Susan Chircop in 1991 and she had attempted to run over him in 1989 and had used violence against him on other occasions. He swore that on one occasion Susan Chircop had been armed with a gun and had threatened him with it and he had seen her with firearms on many occasions and she always carried a gun when they were together. He said that after their relationship broke up he had seen her in the possession of a firearm on about twelve occasions and he last saw her at Christmas 1997. Asked in cross-examination whether he had made in the order of forty court appearances he said it was closer to one hundred and fifty appearances. He agreed he had spent nine years in prison.

On 17 May 2001 after a relatively short deliberation, the jury found the applicant guilty of murder. On 12 June 2001 a judge of the Supreme Court sentenced the applicant to 19 years' imprisonment with a minimum of 14 years. No appeal has been made with respect to sentence. On 22 June 2001, through his solicitor, the applicant filed notice of application for leave to appeal against conviction stating one ground, namely, that the verdict was unsafe and unsatisfactory. On or about the same day and for reasons which have not been explained, a separate notice of application for leave to appeal against conviction was filed in which four grounds of appeal were stated, those complaining as to the trial judge's directions on provocation and self-defence, and also complaining that the verdict was against the weight of evidence and that the trial judge should have excluded evidence relating to the attendance of a person at the house adjoining the rear of Frank Chircop's property.

On 28 July 2003, new solicitors acting for the applicant filed two additional grounds of appeal. On the hearing of the application for leave to appeal before us which was conducted a week after the new grounds of appeal were filed (some two years after the trial), Mr Holdenson, who appeared for the applicant (but did not appear at the trial), advised the Court that all earlier grounds of appeal were abandoned and that the applicant now relied only on the new grounds. Those grounds are as follows:

"5.The learned trial judge erred in his directions to the jury in that he failed to direct the jury with respect to lies in circumstances where the Crown prosecutor, in his final address to the jury, submitted that the applicant lied in his sworn evidence before the jury.
6.The learned trial judge erred in his directions to the jury in that he failed to direct the jury with respect to the evidence led concerning the visit of the applicant to the home of Mr and Mrs Prevolsek subsequent to the shooting of the deceased and the contention of the Crown prosecutor as articulated by the Crown prosecutor in his final address to the jury, with respect to that evidence."

Mr Holdenson submitted that if the Court concluded that the errors identified in grounds 5 and 6 were not individually sufficient to establish a substantial miscarriage of justice, they would have that effect when combined.

Ground 5 - Lies

In his final address the prosecutor submitted that the evidence of the accused that Susan Chircop was armed with a gun was a fabrication, as was his assertion that until he had been hypnotised by Dr Burrows he had no recollection of what he had done on the day of the killing. The jury were invited to reject the evidence of Professor Burrows on the basis that upon examination of the video tape of his sessions with the applicant it was clear that he had planted the idea of self-defence during the course of the hypnosis sessions and that no genuine recovered memory had arisen during those sessions. The prosecutor suggested that it was a convenient recovered memory, because the applicant did not remember anything which was inconsistent with his defence of self-defence, but remembered events which supported his defence.

The prosecutor said this of the applicant:

"The point I am making, members of the jury, is that you have heard the accused and you have seen him and I suggest to you he is not a person of truth. He just tells lies. He retreats all the time because he knows his defence has got to do with memory because he has had the support of Stokes and Burrows and Dr Grigor and they have looked at this question of memory and he knows that is the safety spot for him, if in doubt where do I go, I retreat to my corner and shut the door, that is lack of memory. I am safe there. They are going to cross-examine me, I am safe if I say lack of memory. The accused man in the witness box is a liar, he prevaricates, tells you things that are plainly totally inconsistent."[1]

[1]T. 823.

The prosecutor submitted that it was "complete nonsense" for the applicant to say that he was at the scene that day coincidentally, because he was on his way to return a gun to a person he would not name. So, too, the suggestion that Carol Chircop aimed a gun at him when he was standing in front of the car was “rubbish”, the prosecutor said.

The defence was confronted with the difficult fact that no gun had been found in the car in which Susan Chircop had died. Defence counsel hypothesised that the gun may have been removed by Tom Falzon, the passenger in the vehicle, and had been hidden by him somewhere in the grounds of the house to which he had run after leaving the car. Falzon did not give evidence in the trial. The suggestion that, having been shot at by someone, Falzon would hide the gun rather than retain it in order to defend himself was described by the prosecutor as "absolute nonsense".

In his charge to the jury the judge summarised the Crown case and reminded the jury of the respective contentions of counsel. No direction was asked for by defence counsel concerning lies told by the accused, and none was given by the trial judge. Mr Holdenson submits that that omission constitutes a miscarriage of justice.

In Edwardsv. The Queen[2] the High Court drew a distinction between lies which are relied on by the prosecutor because they amount to an implied admission of guilt on the part of the accused person and lies which are relied on only for the purpose of challenging the credibility of the accused. In the former category the lie is said to spring from a consciousness of guilt, that is, being relied on as amounting to

an implied admission of guilt[3], or as an admission against interest[4], i.e. “that he knew that the truth would implicate him in the offence”[5] or that “if he tells the truth, the truth will convict him”[6].
[2]Edwards v. The Queen (1993) 178 C.L.R. 193, at 208.
[3]Edwards, at 208.
[4]Edwards, at 211.
[5]Edwards, at 210
[6]R. v. Tripodi [1961] V.R. 186, at 193, cited in Edwards at 209

In Edwards Deane, Dawson and Gaudron, JJ. held that a comprehensive direction was required “where a lie is relied upon to prove guilt”[7], rather than for the purpose of attacking the credit of the accused. Reliance in that way will ordinarily be determined by the use made of the lie by the prosecutor, especially where the prosecutor suggests it is a lie told in consciousness of guilt. When required to be given, then, their Honours held:

“ . . . the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or as was said in Reg v. Lucas (Ruth), because of “a realization of guilt and a fear of the truth”.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization 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 recognized that there is a risk that, if the jury are invited to consider a lie told 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. He may recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect”.[8]

[7]Edwards, at 210.

[8]Edwards, at 210-211.

One component part of that full Edwards direction highlights the concern addressed in Broadhurst v. The Queen[9], in which Lord Devlin held:

“It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused’s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness.”

[9][1964] A.C. 441 at 457. See too Edwards v. The Queen (1993) 178 C.L.R. 193 at 202, 205, 208; Zoneff v. The Queen (2000) 200 C.L.R. 234 at [23]-[24], [57]-[58], [78].

Mr Holdenson accepted that the prosecutor had not contended that lies told by the applicant were told in a consciousness of guilt of the crime charged, but had referred to lies only for the purpose of attacking the credibility of the applicant and the account of events which he had given. Mr Holdenson conceded that where the lies had been referred to only for the purpose of attacking credibility and not for the purpose of demonstrating consciousness of guilt, there is no mandatory requirement for any direction to be given as to lies[10]. Indeed, as Callaway, J.A. observed in R. v. Konstandopoulos[11], an Edwards direction is not, as such, a requirement of law but falls to be delivered where in any situation it is necessary in order to prevent a miscarriage of justice; the particular miscarriage being that which would arise if the jury misused lies so as to make a finding of guilt by impermissible reasoning.
[10]See R. v. Renzella [1997] 2 V.R. 88, at 91; R. v. Erdei [1998] 2 V.R. 606, at 621.
[11][1998] 4 V.R. 381, at 388.

In the joint judgment in Zoneff v. The Queen[12] Gleeson, C.J, Gaudron, Gummow and Callinan, JJ. rejected the notion that any rigid prescriptive rules should apply as to whether and in what precise terms a direction as to lies ought be given[13]. In Zoneff the prosecutor had not addressed the jury, because the accused was unrepresented, but had cross-examined him about alleged lies. The prosecutor did not imply in his questions that the lies were told in a consciousness of guilt, but the judge apprehended that the jury might use them in that way and gave a direction which the majority concluded was inappropriate.
[12](2000) 200 CLR 234.
[13]Zoneff, at [15].

Their Honours held that where the prosecutor had neither directly nor by implication suggested to the jury that the lies were told out of a consciousness of guilt “it was unnecessary, indeed undesirable” that an Edwards direction be given, one reason being that it would have raised an issue on which the parties were not joined[14]. Their Honours held that the trial judge’s concern that there was a serious risk that the jury might engage in impermissible reasoning concerning lies might have been addressed by delivering what amounted to a modified version of the Broadhurst direction[15].
[14]Zoneff, at [20]
[15]Kirby, J., dissenting, at [78]-[85], held that a direction as to lies was necessary, because of the way the case had been conducted and that a full Broadhurst direction would have been appropriate. He held, however, that the direction that was given, although containing some insubstantial infelicity, was adequate in the circumstances.

In the joint judgment their Honours held:

“A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
‘You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.’

A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.”[16]

[16]Zoneff, at [23]-[24].

The appropriate direction in this case, according to Mr Holdenson, fell somewhere between Edwards and Zoneff. Mr Holdenson submitted that the jury in this case should have been directed, first, that they had to be satisfied that the accused had told lies. The judge should have directed them that before so concluding they would have to exclude the reasonable possibility that a false account (if it was false) was the result of his "major depressive illness" or the result of his "memory disorder". Secondly, the jury should have been told that even if they found that the accused had in fact lied then they should not reason that because he told lies he was guilty of the offence; the jury should be told that if any lie was proved then the lie did not constitute evidence of guilt but was relevant only as to credibility. Thirdly, the jury should have been directed that even if he had lied there could be explanations for the lie, such as panic, confusion or anxiety to rebut an unjust accusation, which would not exclude the reasonable possibility that notwithstanding the lies the applicant had been acting in self-defence or in response to provocation.

As the Court held in R. v. Renzella,[17] it is inappropriate that the trial judge present the Crown case to the jury in a manner which was not advanced by the prosecutor. However, the fact that the prosecutor did not assert to the jury that the lies were told in consciousness of guilt (as was conceded by Mr Holdenson to be the case here) would not remove from the judge the obligation to give an appropriate direction as to lies if the judge formed the opinion that there was a risk of misunderstanding on the part of the jury as to the use to which they may put lies[18]. The experienced trial judge in this case did not apprehend any such risk, nor did experienced trial counsel who appeared before him.
[17]Renzella, at 92.
[18] Zoneff, at [16], Per Gleeson, C.J., Gaudron, Gummow, Callinan, JJ. Similarly, Kirby, J., at [71], held that the requirement would arise if the jury might use the evidence in an impermissible way unless appropriately directed.

The appropriate approach of a trial judge has most recently been considered in Dhanhoa v. The Queen[19] wherein Gleeson, C.J. and Hayne, J. held:

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

[19][2003] HCA 40, at [34]; (2003) 77 ALJR 1433.

Was this such a case? Mr Holdenson submitted that it was, but I am unpersuaded that there was any risk of the jury in this case making inappropriate use of lies so as to conclude, by impermissible reasoning, that because he told the lies to which the prosecutor referred in attacking the credibility of the applicant he must be guilty of the offence.

It is important when considering arguments on appeal, especially when the trial was conducted by different counsel to those arguing the appeal, that the reality of the trial not be lost, and that the issues on which battle was joined before the jury are not treated as of mere passing relevance to an academic appellate debate. This was a trial in which seven eye witnesses gave evidence of the shooting. None saw a gun in the hands of the victim, no one saw a gun in Falzon’s hands, and no gun was ever found. The whole case turned on the question whether the victim had produced a gun, thus causing the applicant to shoot in self-defence[20]. If the jury concluded beyond reasonable doubt that the victim did not have a gun at the time, then the accused must have been convicted of murder. The fact that the jury concluded that he had told a lie about that matter added nothing, and no further direction was required other than was given concerning the burden of proof and standard of proof.
[20]Furthermore, the only provocative act which was identified for the defence of provocation was the production of a gun, and threatening pointing of it at the applicant by the victim.

Furthermore, given the way in which the case was contested at trial, if the jury concluded that the applicant was at the scene not by coincidence, but because he was stalking his victim, or if it concluded that he was not carrying the weapon which fired the fatal shots merely for the purpose of returning it to its owner but was deliberately armed, or if it concluded that contrary to his account of only recovering (partial) memory under hypnosis the applicant had a recollection of events of the day, then the defence of self-defence was bound to fail[21]. That would be so not because the jury applied impermissible reasoning - that if he was a liar he must be guilty - but by virtue of the fact that the only evidence that Susan Chircop had a gun in her hands came from the applicant. If his own account of self-defence was shown to lack credibility (as it would if any of the critical component parts of his account was discredited) then all of the remaining evidence pointed to the absence of a gun, and, therefore, the absence of any defence of self-defence. Thus, in identifying these matters as lies the prosecutor was going no further than contending that the defence lacked credibility.
[21]Although the defence of provocation was left to the jury, it was only briefly mentioned by defence counsel in his address, nor was anything made of that defence on the appeal. It is not surprising that that was so, because the only provocative act was said to be the threatening of the applicant with a gun. If the jury rejected self-defence it is impossible to conceive how a provocation defence, or a defence of lack of murderous intention, could have had any prospect of success.

It is telling that neither counsel nor the judge thought that the judge should give directions as to lies. Although Mr Holdenson’s preferred direction would have required the judge to warn the jury to consider whether the apparent lies might have been explained by the major depressive illness or memory disorder of the applicant and to warn them that even if they were lies that would not of itself disprove self-defence, there were very good reasons why such an experienced trial lawyer (as was the case here) would not have wanted such directions.

Although defence counsel did rely on the depressive illness and memory disorder as significant explanations for other aspects of the applicant’s post-shooting conduct (among other factors such as stress, panic, etc.) he could not have relied on those conditions by way of explanation for lies, and did not do so, save in the vaguest terms. At the highest, the medical evidence concerning those conditions offered an explanation why the applicant might have forgotten events or details of event, but that evidence, as Mr Holdenson conceded, offered no explanation for the telling of deliberate lies or the memory of events which did not occur.

Even if I concluded that it would have been better that a direction had been given as to lies, it would not follow that a miscarriage of justice (at least not a substantial miscarriage of justice for the purpose of application of the proviso in 568(1) of the Crimes Act 1958) has occurred by the failure to so direct. In Dhanhoa McHugh, J. and Gummow, J. held:

"It is possible, therefore, that the jury may have reasoned that the accused was guilty because he had lied to the police. It is not necessary for a trial judge to give a direction concerning lies as evidence of guilt whenever a prosecutor suggests directly or indirectly that an accused's out-of-court statement is a lie [Zoneff at [16]]. But in this case it would have been better if the trial judge, having given the direction that he did, had instructed the jury as to how they were to use any lie told by the accused. Given the way that the Crown conducted its case, it would have been better if the trial judge had directed the jury that the accused's lies, if they found he had lied, only affected his credibility.
However, it is not enough to establish that a miscarriage of justice has occurred by showing that it would have been better if the trial judge had given an appropriate direction concerning the effect of lies or that there is a possibility that the jury may have reasoned that the accused was guilty because he had lied to the police. To succeed in the appeal, Dhanhoa must establish that it is a reasonable possibility that the failure to direct the jury 'may have affected the verdict' [Simic v. The Queen (1981) 44 C.L.R. 319 at 332]. We do not think that he has done so."[22]

[22]Dhanhoa, at [59]-[60], emphasis as given by their Honours.

McHugh, J. and Gummow, J. in Dhanhoa, also stated the test as follows:

"But even if the jury decided to examine the accused's answers to the police as indicating a consciousness of guilt, to succeed in this appeal Dhanhoa must show a reasonable possibility that they convicted him because they took his statements as evidencing that consciousness."[23]

Their Honours held[24] that:
"[W]e do not think that there is a reasonable possibility that the verdict of guilty would have been different if the trial judge had given a direction concerning lies. Indeed, to have given a direction about lies - to have given an Edwards direction - might not only have emphasised the issue but made it difficult for the jury to disregard consciousness of guilt as an issue."

[23]Dhanhoa, at [61].

[24][64].

In my opinion, the decision of defence counsel in this case not to seek a direction as to lies must have reflected his concern that to introduce consciousness of guilt into this case (even for the purpose of dispelling it as a relevant concern) could not have assisted the applicant. The absence of a direction addressing “consciousness of guilt” was appropriate because the discussion concerning “lies” in the addresses of counsel, far from creating a risk of the jury misusing the evidence by employing an impermissible process of reasoning, focussed attention on the real issue, whether there was any credible support for the defences of self-defence and provocation. That issue was one which called for appropriate directions as to the burden and standard of proof, which the judge gave. The learned trial judge identified the relevant legal and factual issues for the jury in his lengthy charge. No further directions were required and the applicant was not denied a chance of acquittal by reason of the failure of the judge to give a direction as to lies.

There is no substance in the complaint raised by ground 5.

Ground 6 – Other Post-Shooting Conduct

In discussions with the trial judge before addresses commenced, and in the absence of the jury, counsel and the judge were in agreement that the conduct of the applicant after the shooting, including fleeing from the scene and asking the Prevolseks to hide him, should not be identified as conduct evidencing a consciousness of guilt. The judge said to the prosecutor:

"He flees and he says will you hide me and I want time to think. Of course, that is all consistent with him realising he shot somebody. Your point is that if you shot somebody in self-defence you don't go putting a gun to your own head and go hiding and you just take that into account in accepting his version of events. I think that is the best way to deal with it, if we get into consciousness of guilt by conduct, given that no doubt (defence counsel) will say that when you look at him shooting himself you have to look at that in the context of, we the defence say, of a man suffering from a major depressive illness and is suicidal and so on, I think it has to be dealt with at another level."

The prosecutor agreed with that and said:
"I would be saying the actions that he does afterwards are the actions of somebody who knows he has done something wrong.
HIS HONOUR: Yes, or the actions of somebody who certainly has not acted in self-defence.

PROSECUTOR: Happy to deal with it at that level.
HIS HONOUR: In this way, yes.
PROSECUTOR: Simple as possible."

It is quite clear from these and other passages of the transcript that counsel were in agreement that the judge should not direct the jury as to consciousness of guilt concerning post-shooting conduct. Mr Holdenson submitted that whilst for the most part the prosecutor approached the matter before the jury as he had proposed, he nonetheless used language on a couple of occasions which in fact introduced the concept of consciousness of guilt and therefore necessitated the judge giving a direction. That obligation remained, he said, notwithstanding the fact that defence counsel, having heard the prosecutor's address, neither sought a direction, nor took exception to the charge.

On a number of occasions in the course of his address the prosecutor touched on the attendance of the applicant at the Prevolseks. He observed that immediately after the shooting the applicant returned to his vehicle, did a U-turn and then chased the other vehicle. He added:

“That’s not a person who is fleeing, who is afraid of his life. That’s a person who is out seeking revenge to finish off the job. He goes to the Prevolseks straight afterwards and he doesn’t say to the Prevolseks, “(L)isten I’ve just had the most shocking experience, I’ve had to defend myself, I am scared for my life”. . . It was “I shot Carol. I need a place to hide”. That’s not self-defence , members of the jury”.[25]
[25]T 796.

Later the prosecutor said:
“If he had shot her in the back, if he had shot her in self-defence and was afraid for his life, why did he chase her? Why did he go to the Prevolseks and want to hide if he was innocent? Why go to the Prevolseks at all?”[26]

And again:
"Why didn’t he say to the Prevolseks, 'I acted in self-defence'? Why did he say 'I shot Carol. I need a place to hide' and why would he shoot himself? The last action, I suggest, if somebody has had to defend himself in self-defence."[27]

And also:
“The next point, why did he chase her if his life is being threatened, that speaks for itself. He has to do a U-turn and goes after her across the pad (sic). Goes there to the Prevolseks because he has to hide. Why does he, if he has shot someone in self-defence, want to hide? Why does he say, “Hide me. I need time to think”? None of that is explicable. Why not tell the Prevolseks what has happened? He clearly remembers the events at that stage, he believes he shot Carol. He wants to hide only because he knows he is guilty of a crime”.[28]

[26]T 799.

[27]T 800.

[28]T.820.

Finally, after summarising the Crown case and submitting that the applicant was not at the scene by coincidence, but was looking for Carol Chircop, and submitting that, in an angry mood, he ran up to the car, the prosecutor said:

“His actions after the event, chasing the car, the way he conducts himself at the Prevolseks, is all indicative of somebody having committed a murder and being conscious of that fact, that this is a case of murder and nothing else”.[29]

[29]T. 841.

Mr Holdenson submitted that the judge should have directed the jury, first, as to how the conduct of the applicant implicated him in the commission of the offence of murder. He should have directed that before they could so conclude they must first find that the accused had conducted himself in the way he did because he was aware that he was guilty of an offence. Secondly, Mr Holdenson submitted, the judge should have directed the jury that before they could use the conduct as evidence of consciousness of guilt, they must exclude all other reasonable hypotheses save for his realisation that he was guilty of the crime charged[30]. Next, the judge was obliged to direct the jury that the Crown had to exclude the reasonable possibility that the conduct of the applicant was explained by the major depressive illness he suffered and also, or alternatively, by virtue of his memory disorder. Finally, Mr Holdenson submitted that the judge should have directed the jury that the conduct of the applicant with the Prevolseks might have occurred for any one of a number of reasons apart from a consciousness of guilt, "for example, out of panic, confusion, by reason of the major depressive illness from which the applicant suffered, or from some other innocent reason".
[30]Whilst there might be instances where it was necessary to warn the jury that consciousness of guilt might have related to an offence other than that with which the accused was charged: see Zoneff, at [62], per Kirby, J.; R. v. Nguyen (2001) 118 A.Crim.R. 479 at [66] per Smith, A.J.A. it would ordinarily not be necessary that such a direction differentiate as between a consciousness of guilt of murder as opposed to manslaughter: see R. v. Wooley (1989) 42 A.Crim.R. 418, at 423-424; R. v. Rice [1996] 2 V.R. 406, at 415-416. In this case if there was a consciousness of guilt of homicide that necessarily meant that the accused was conscious that he was not acting in self-defence and that must have led to a conviction of murder, since, for reasons discussed in footnote 21 defences of provocation and lack of murderous intention, although left to the jury, had no prospects of success.

Mr Holdenson submitted that given the absence of any direction by the trial judge concerning the post-shooting conduct the jury were left to their own devices and may well have applied an impermissible process of reasoning towards the conclusion of guilt. The impermissible reasoning would have been to conclude from the mere fact that he had acted as he did at the Prevolseks that he was guilty of murder.

It is true that the prosecutor sought to make use of post event conduct in order to have the jury conclude that the applicant did not act in self-defence, but in doing so the prosecutor did not seek to argue that by his actions after the shooting the accused had, in effect, admitted as much. In other words, the prosecutor was at pains to eschew use of the evidence as demonstrating a consciousness of guilt on the part of the accused. Instead, the prosecutor pointed to the post-shooting conduct so as to contend that it was inconsistent with the account now given by the applicant that he had acted in self-defence.

It has to be appreciated that the accused man gave evidence that he had no memory, at all, of attending the home of the Prevolseks. Thus, he was unable to say what was his state of mind at the time when he said and did the things about which the Prevolseks gave evidence. He simply asserted that as a result of hypnosis, and notwithstanding the evidence of the eye witnesses, he now recalled that his victim had pointed a gun at him, causing him to act in self-defence. By referring to what had occurred after the shooting, and without it being necessary for the jury to decide why the accused might now give this evidence, the prosecutor was contending that the objective facts were at odds with his evidence. The prosecutor was not seeking to prove his case by way of implied admission, but by the combined weight of the independent eye witness evidence and the objective facts, including the evidence of what the accused actually did after the shooting occurred. As to that conduct it was being put that what the applicant did after the shooting was not consistent with the behaviour of a person who had acted in self-defence.

Although the prosecutor intended to use the post-shooting conduct in those ways and not as proof of guilt by way of admission of guilt by conduct, the question for this court is whether there was a risk that the jury might have treated proof of any or all items of post-shooting conduct as capable in themselves of proving the guilt of the accused, by way of such an admission against interest, and whether, therefore, a direction was required to prevent them reasoning towards guilt in that way without giving appropriate consideration to the various component elements of what constitutes an Edwards direction.

The prosecutor on a couple of occasions did use language which suggested that the conduct demonstrated consciousness of guilt. In one instance the prosecutor said that the applicant wanted to hide “only because he knows he is guilty of a crime” and on a second occasion he said that his conduct was “indicative of somebody having committed a murder and being conscious of that fact”. In an address which occupied 66 pages of transcript those two passages are unlikely to have been given the significance by the jury which Mr Holdenson now seeks to give them. But let us assume that in those passages the prosecutor, despite his intention not to do so, did indeed suggest that the post-shooting conduct demonstrated a consciousness of guilt. Mr Holdenson submits that because of those slips in language the judge should have given an Edwards direction. Might those references have been enough to create the danger of impermissible use by the jury of the evidence and thereby necessitated an Edwards direction?

In arguing that an Edwards direction was required Mr Holdenson placed emphasis on several decisions of this Court, in particular highlighting the judgment of Winneke, P. in R.v. Nguyen[31]. In that case the accused man had fatally shot his stepson and then taken steps to dispose of the weapon and pretended to police that an intruder had been responsible for the shooting. He had also enlisted his wife and step daughter to support his claims. At trial the accused said that the shooting had been an accident which occurred while he was cleaning a shotgun which he believed to be unloaded. The prosecutor made much in his address of the lies told to police and the conduct of disposing of the gun. The President held that:

“It would seem to me that the prosecutor was inviting the jury to conclude that the post-shooting conduct of the applicant was itself evidence of his guilt of murder; that it was evidence inconsistent with his claim of accident. He was going beyond a mere invitation to regard the applicant as a witness whose evidence should not be believed. Rather, the invitation was to use the applicant’s post-offence conduct as evidence which demonstrated that he had the necessary intent to support the charge of murder”.[32]

[31](2001) 118 A.Crim.R. 479.

[32]Nguyen, at [6].

The judge in Nguyen had given a direction to the jury that lies could only be used for purposes of credibility, and that they should not jump to a conclusion of guilt if they concluded that lies had been told. In his judgment the President noted that the issues in the trial were whether the gun was discharged accidentally or deliberately, with a criminal intention. The President added[33]:

“The post-offence conduct of the applicant in disposing of the weapon and thereafter pretending to the police that the deceased was shot by an intruder was heavily relied upon by the Crown in proof of that issue. It was evidence upon which the jury was inherently likely to rely in determining the issue. I use the term ‘post-offence’ conduct advisedly because it extended to the disposal of the weapon, and thus, went beyond lies told to the police. In this sense, it was open to be used by the jury, as the Crown was asserting, as part of the circumstantial evidence upon which the jury could find that the gun was discharged voluntarily and with the relevant intent by the accused. It was conduct which, as the Crown said, invited the logical query: why would he act in this way if it was an accident? It has often been recognised that, while post-offence conduct is capable of being used by the jury as evidence of guilt it is also capable of being misused. The Supreme Court of Canada in the recent case of White[34] put it in these terms:
‘It has been recognized, 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 this 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.’

The probative strength of post-offence conduct, such as concealment of weapon or flight, with or without ‘covering lies’, will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused’s mind at the relevant time, the conduct will have to be assessed in the light of the probabilities. But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, as I think they required in this case, a careful direction from the trial judge of the type referred to in Edwards. Such a direction should have involved a specific identification by the trial judge of the conduct being relied upon by the Crown to prove murderous intent; a direction that they could only use such conduct as proof of guilt if they were satisfied that there was no other explanation, consistent with innocence for it; and that the accused only engaged in the conduct because he knew that revelation of the truth would implicate him in the offence charged. Properly directed, the jury should also have been told that conduct such as that relied upon by the Crown could stem from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt.” (Footnotes omitted.)

[33]Nguyen, at [20].

[34](1998) 125 CCC (3d) 385, at 398.

Counsel for the applicant submitted that in the present case the prosecutor was adopting the same approach as had been adopted in Nguyen, and was inviting the jury to conclude that the post-shooting conduct was evidence which of itself could prove guilt by proving that, at the time of the shooting, the applicant was conscious of the fact that he had not been acting in self-defence. An Edwards direction was held to be necessary in Nguyen and, counsel submitted, so should one have been given in this case. In my view, that submission adopts a quite formulaic approach to the question whether an Edwards direction is required in any case, and assumes it to be obligatory because the prosecutor used some words which were similar to those used in Nguyen. That approach ignores the considerable differences in the circumstances of the two trials.

The obligation to give an Edwards direction is the application of the obligation cast on a trial judge to ensure a fair trial[35]. The facts in Nguyen raised the distinct possibility of a miscarriage of justice, and it was that risk which the President was concerned had not been removed by the trial judge. In Nguyen, the President said that it was because of “the peculiar circumstances of this case”[36] that the direction was required. Nguyen was a circumstantial case. There was no eye witness, no apparent motive for the shooting, and the objective facts were as consistent with accident as with murder. In those circumstances the reliance by the prosecutor on post-event conduct was likely to have been given particular weight by the jury. As earlier noted, the President held that the post-shooting conduct in Nguyen “was evidence upon which the jury was inherently likely to rely in determining the issue”[37].
[35]See Nguyen, at [19]
[36]Nguyen, at [18]
[37]Nguyen, at [20].

Winneke, P. drew a distinction between a case where post-offence conduct was being relied on merely as one part of a body of circumstantial evidence leading to a conclusion of guilt, on the one hand, and a case where the post-offence conduct was being used and was capable of being used as, in itself, proof of guilt, on the other hand[38]. As the President made clear, in the former case the post-offence evidence is not being used to prove consciousness of guilt and an Edwards direction would not be required.[39] It is only the latter case which would be likely to require such a direction if there is a real risk that the jury would use that evidence as proof of guilt but without taking into account the fact that there may be explanations for the conduct other than a realisation that he was guilty of murder.
[38]See, too, Ormiston, J.A. in R. v. Chang [2003] VSCA 149, at [5].
[39]Nguyen, at [18]-[19].

The President held that in Nguyen although the prosecutor avoided the words “consciousness of guilt” he intended that the jury use that conduct in proof of guilt[40]. The President held[41] that there was a real risk that the jury would reason that the post-offence conduct was capable, in itself, of proving that the shooting was not an accident, whereas the conduct was capable of having an explanation other than of a consciousness of guilt of the offence. In Nguyen there were a number of alternative explanations for the conduct, including those which arose out of cultural factors. The President was concerned to ensure that the jury both appreciated and gave full consideration to those alternative explanations. There was a “real risk”[42] or a “clear possibility”[43] that without a judicial direction the jury would not give appropriate consideration to those matters, as emphasised by the conclusion reached by the President that:

“In this case where there were, as I have previously noted, objective facts and circumstances suggesting the improbability of murderous intent, it was, as I see it, important for the judge to have specifically brought to the jury’s attention possible explanations for the applicant’s post-offence conduct consistent with the absence of such intent”.[44]

[40]Smith, A.J.A in Nguyen, at [87] said that the post-shooting conduct was “the critical evidence in the case”, and at [96] that this evidence was so “central to the Crown’s case” that the judge was obliged to give “judicial support” to the arguments advanced by counsel for the accused in answer to that evidence.

[41]Nguyen, at [18]. Chernov, J.A. in a separate judgment in which (at [24], [36]) he substantially agreed with the reasons of the President, agreed that there was a “real risk” that the jury would treat the evidence as probative of guilt of murder. There was a risk of the jury misunderstanding how they might use that evidence and that they would employ impermissible reasoning. Chernov, J.A. held (at [37]-[39]) that “in a case such as the present” there was a perceptible risk of a miscarriage of justice.

[42]Nguyen, at [18]

[43]Nguyen, at [18]

[44]Nguyen, at [21].

The President related the obligation to give a direction in Nguyen to the unusual circumstances of that case and expressly said that, in general, “the nature of the directions required to be given must depend upon the issues which are being fought between the parties at the trial.”[45] A similar observation was made by Charles, J.A. in R. v. Chang[46], another recent case where similar issues have been before the Court. In Chang, which was decided after judgment was reserved in the present case, Charles, J.A. held that the question whether a direction was required “will always turn on the nature of the evidence in question and its relevance to the real issue in dispute”.
[45]Nguyen, at [20]. In a separate judgment, Smith, A.J.A. concluded that the directions given by the trial judge were deficient only in a limited, but crucial, respect. The judge adequately warned the jury about lies but failed to convey the same warning about post-offence conduct and ought to have given judicial weight to the arguments advanced by defence counsel as to alternative explanations for the post-offence conduct. Those failures mattered in Nguyen because, as Smith, A.J.A. stressed (at [95]-[98]), that evidence was so central to the Crown case and was relied upon to such an extent that the accused was seriously disadvantaged by the absence of a direction and the error went to the root of the proceeding.
[46][2003] VSCA 149, at [40].

Undoubtedly, post-offence conduct might be capable of amounting to an admission that there was no merit in a defence being put forward at trial. In R. v. White, which was cited with approval in both Nguyen and Chang, the Canadian Supreme Court held:

“It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct might also be relevant in cases whether the accused has admitted to committing a physical act but asserts that it 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”.[47]

[47](1998) 125 C.C.C. (3d) 385, at [32].

However, while the evidence might be used in that way, as an admission, it might also be used to show that it is conduct which is consistent with the account of events on which the Crown relies to prove guilt. Such an approach was adopted in R. v. Bogunovic[48], to which I will later make reference. It is the manner of its use, and the way in which the jury might use or misuse the evidence which determines whether a direction is required so as to prevent a miscarriage of justice. The decision of the Court in Chang is also distinguishable, and it illustrates how the necessity for a direction must be assessed against the circumstances of the case at hand.
[48][1999] VSCA 133.

In Chang a police officer came upon the accused deep in bushland, disguised and hiding near a vehicle close to which was a freshly dug empty grave, and also nearby was acid and chemicals which might be used for disposing of a body. When discovered the accused gave what proved to be a false story of having been kidnapped by drug offenders. The accused then struck the police officer and fled on foot. In the boot of the car was found the body of his female victim. After the victim had gone missing the accused had indulged in conduct, such as ringing her parents and asking for her, which was designed to throw suspicion away from himself. When later interviewed by police he said the death had been an accident; that they had been arguing and struggling and the victim had fallen and hit her head. He had then panicked and placed her body in the boot to dispose of it. In later interviews his account varied and he said that after she had accidentally fallen and struck her head he had kicked the body and struck the head of the woman while she was on the ground in order to determine whether she was dead. The evidence disclosed that the fatal injury to the head had been from a substantial blow.

In Chang, Charles, J.A., with whom Ormiston, J.A.[49] and Cummins, A.J.A. agreed, said that although the prosecutor in that case did not use the words “consciousness of guilt” both the opening and closing addresses “would have left the jury in no doubt that the prosecution was relying on the accused’s post-offence conduct and lies to show that his awareness of guilt directed his actions”[50]. Charles, J.A. held that a full Edwards direction was required and:

“the absence of such a direction meant that the applicant was, as was contended on his behalf in this Court, denied the protection he would have been given by a warning that his behaviour may not have stemmed from a realisation of his guilt of murder, as distinct from a realisation that he had caused the victim’s death and that there were possible explanations such as panic or a desire to escape an unjust accusation for his highly bizarre behaviour. The case is, in my view very close in these respects to what occurred during Nguyens’ trial. The conduct here, I have concluded, would inevitably have been used by the jury for the purpose of drawing an inference as to the state of the accused’s mind at the relevant time. Since it was capable of being misused by the jury, the interests of a fair trial required a careful Edwards direction from the trial judge as to all the conduct and lies originally sought to be relied on by the prosecutor in this way”

[49]Ormiston, J.A. also added some reasons of his own.

[50]At [47].

Charles, J.A. applied as the test the statement of Gleeson, C.J. and Hayne, J. in Dhanhoa that a direction was required if “the judge apprehends that there is a real danger that the jury may apply such a process of reasoning”. His Honour said it was certain that the jury in Chang would have done so[51].
[51]At [48].

As earlier stated, in my opinion the approach by the prosecutor in this case was concerned not with the applicant’s consciousness of guilt at the time, but to demonstrate that the conduct at the time, and the objective facts, were inconsistent with the recollection of events the applicant now gave as a result of hypnotism. It must be said, however, that that analysis is similar to the analysis made by the Director of Public Prosecution in Chang in unsuccessfully arguing that the use to which the evidence was put in that case did not require that a direction be given. The Director submitted that the post-event conduct in Chang was being used as merely one part of a circumstantial case in which the Crown was endeavouring to prove that defences of accident, self-defence or lack of intention to kill were inconsistent with the objective facts. Thus, he submitted, the prosecutor had been attacking the credibility of the version of events given by Chang to the police and in doing so was illustrating that : “His exculpatory answers were not consistent with the objective facts”.

Charles, J.A., rejected that analysis of the prosecution case in Chang. His Honour held that that was not how the matter was put to the jury either by the prosecution or the judge, and he doubted, in any event, that the jury would have understood the difference between the two suggested approaches to the use of the evidence[52]. As noted earlier, his Honour held that it was “certain” that the jury in Chang would have misused the evidence, by employing an impermissible process of reasoning to it. He observed that the opening and closing addresses of the prosecutor would have left the jury in no doubt that the prosecutor was relying on post-offence conduct and lies to prove guilt (by way of consciousness of guilt)[53]. In my view, that was not the situation in the present case.
[52]Chang, at [47]
[53]At [47]

As Ormiston, J.A. held in Chang[54], if the evidence and its use by the prosecution is intended to show that such lies and other acts could not have been perpetrated unless the accused was implicitly admitting his or her guilt then the need for a warning arises, and that is so even of the prosecutor avoids using the words “consciousness of guilt”. But, as his Honour added:

“If a lesser use of that evidence by the jury is intended and sought by the prosecution, then the absence of a warning will ordinarily cause no harm”.[55]

[54]At [5].

[55]At [5]

In R. v. Bogunovic[56], a very similar rationale by counsel for the Director for the use that was made at trial of post-offence conduct proved more persuasive on appeal than it had in Chang, thus illustrating that a universal rule can not be imposed, and that the need for a direction must be assessed against the particular circumstances of each such case.[57]
[56][1999] VSCA 133, at [39].
[57]R. v. Ali [2002] VSCA 194, at [32] is a further illustration of the need to consider the whole of the circumstances and the way the Crown was seeking to use the evidence. In that case counsel for the Director contended unsuccessfully that the conduct of the applicant in washing blood from his shoes in a holding cell, after a prisoner had been kicked, and immediately disposing of a murder weapon, had been used neither as an admission, by way of consciousness of guilt, nor even as post-offence conduct, but merely as part of the actus reus; i.e. that they were the acts of a murderer. The Court disagreed that the evidence was used in that way and held that a direction was required.

In Bogunovic, as Winneke, P. observed, it was not until he was in the witness box that the applicant for the first time offered an explanation for certain conduct which he admitted had occurred after, he said, he stumbled on the scene in a house where a victim lay dying from severe wounds. He claimed to have fled in panic, and for that reason failed to seek medical help for a dying woman or to have reported to anyone what he had seen. The prosecutor, described the explanations for his conduct as offered in his evidence as being “unbelievable”. Winneke, P., with whom Tadgell, J.A. agreed, held that the prosecutor was not using the post-offence conduct as an implied admission of guilt, but as merely one circumstance, within a combination of circumstances, which excluded the applicant’s account as a reasonable hypothesis consistent with the applicant’s innocence. A direction as to lies, the President held, would have been “superfluous in the context of a case where the learned judge was obliged to and did give the standard circumstantial evidence direction . . .”

In a separate judgment in Bogunovic - agreeing that a consciousness of guilt direction was not required - Callaway, J.A. held that the jury were entitled to view the conduct as being inconsistent with his unexpected discovery of the victim. Additionally, his conduct in not seeking assistance for the victim could be used not on the basis that it was evidence of consciousness of guilt, or as an implied admission, but on the simple basis that that is the conduct in which the offender would have engaged[58].
[58]Bogunovic, at [59]

The present case was not a circumstantial case, and no such direction was sought or given (nor is any complaint made now about its absence), however, in my view, a similar approach to the use of post-offence conduct was being adopted here, as in Bogunovic. It was being put that the conduct was not consistent with that of a person who had acted in self-defence, and as such was merely one item of evidence which pointed to the lack of credibility of the self-defence hypothesis.

Where a direction is required, it is given with the weight of judicial authority, because that is required to ensure that a miscarriage of justice does not occur. The fact that counsel addressed the relevant issues would not suffice. However, in determining whether there is a real risk of a miscarriage of justice it is relevant to consider how counsel dealt with post-shooting conduct in their addresses, and the judge in his charge. Counsel for the respondent contends that the directions which were given, as to the burden and standard of proof, were sufficient to meet the requirements of the case.

The address of defence counsel followed the prosecutor’s. Counsel was in a position to respond to the prosecutor’s argument and to advance alternative hypotheses for the post-shooting conduct. He did so. He submitted that the applicant’s conduct could not be judged by the standards of normal people. The applicant was a special person who suffered depressive illness and memory disorder, with the result, counsel submitted, that when suffering stress and anxiety his memory and thoughts could become fragmented. Thus, after the shooting his thoughts were so fragmented, and he was in such an emotional state, that all he could think was that he had shot Carol. He had gone to the Prevolseks with that in his mind. His words and conduct were consistent with acting in self-defence and with him then suffering the effects of fragmented memory. Counsel added:

“The evidence suggests he’s panicked. It’s the behaviour of a man whose mind is everywhere and his behaviour becomes explicable in terms of panic and confusion. Realises that he’s shot his wife. You will remember exactly how it was that the Prevolseks described how he looked. He was not normal. Distressed and then, of course, he just goes on to do what he set out to do that particular morning; take his own life.”[59]

[59]T 904.

In directing the jury on the law as to self-defence his Honour said that the prosecutor had contended:

“Further, the accused never told the Prevolseks that he acted in self-defence. Rather, he wanted them to hide him – which was quite consistent with his knowledge of having committed an offence. When they refused to do so he shot himself. This, submits the Crown, was the action of a suicidal man having achieved his homicidal purpose”[60].

[60]T 934.

As to the defence response, his Honour said that it was argued that the eye witnesses were not in a position to have seen a gun in the hands of Susan Chircop, and that on this day the accused was in a suicidal mood, not homicidal. His Honour said the defence argued:

“Any failure by the accused to mention self-defence to the Prevolseks was understandable given the traumatic experience he had just been through and a memory fragmented by illness and disability”.

When summarising the addresses of counsel the judge said that the prosecutor argued that the evidence showed a man who had been in an angry and vengeful mood since the previous day and had been observed to be in an angry and aggressive mood on the day of the killing. His Honour summarised the prosecutor’s review of the evidence as showing a man whose actions were not those of someone who acted in self-defence. In the course of that discussion his Honour summarised some parts of the prosecutor’s address as follows:

“The accused does not flee from the scene like a scared person might do, but pursues the Probe to finish off his victim. What he told the Prevolseks straight afterwards had nothing to do with self-defence; it was “I shot Carol, I need a place to hide”.[61]
And, his Honour said, the prosecutor argued,
“If he shot her in self-defence and in fear of his life, why did the accused chase her? Why did he go to the Prevolseks and want to hide himself there if he was innocent? Why did he not say to the Prevolseks “I shot Carol in self-defence? Why did the accused shoot himself? That would be the last action of someone who had acted in self-defence, submitted (the prosecutor). Is this claim of lost memory a genuine one, and does it match up with what he told different people at different times? Did Professor Burrows “trick up” the defence for him? The answer is “yes” submitted (the prosecutor)”. Even if you accepted everything that the accused said in the witness box, does it amount to self-defence? (The prosecutor) submitted that the answer was no”.[62]

[61]T 1112.

[62]T1113.

Later the judge, continuing the summary of the prosecutor’s address, said that the prosecutor contended that the first and only claim that the victim had a gun came after “the miraculous restoration of his memory” due to hypnosis, and that if the victim had held a gun it must have been seen by some of the witnesses. Later his Honour continued:

“If he believed that his life was in danger, why chase the Probe, and if he had shot in self-defence why did he ask the Prevolseks to hide him so he had time to think? The answer, submitted (the prosecutor), is that he wants to hide only because he knows he is guilty of a crime. He does not say he shot in self-defence, although he knows he shot someone he believes to be Carol.
If what occurred gave him sufficient time to see a gun, how come he does not have time to recognise Sue, who looks quite different from her sister Carol? The fact is that the accused was so furious and enraged he just saw Carol’s car and after that it is bang, bang, bang, bang.
(The prosecutor) put it to you that the accused’s endeavour to shoot himself was the final act of a desperate, violent, impetuous man, a man who believed he had done what he wanted to do, namely, kill Carol. The Prevolseks would not hide him and give him time to think so this desperate, violent, impetuous man tried to kill himself”.[63]

[63]T1117-1118.

In the above extract from the charge the learned trial judge did repeat the words of the prosecutor that are now said to have necessitated an Edwards direction. I do not, however, consider that in the context of this trial the jury would have understood those words in a way which created a real risk of them employing impermissible reasoning. Notwithstanding the unfortunate choice of words the post-shooting conduct was only being used as one area of evidence which, when combined with other evidence, meant that self-defence was not a reasonable possibility. In other words, the case was presented on the first basis discussed by Winneke, P. in Nguyen[64], which did not necessitate an Edwards direction. The jury were not invited to conclude that the conduct, in itself, could prove guilt.
[64]Nguyen, at [18], that is, that it merely formed part of a body of evidence from which guilt might be inferred, rather than being used, and being capable of being so used, to prove guilt, in itself.

In summarising the defence final address his Honour dealt with counsel’s responses to each contention by the prosecutor, including the missing gun and the failure of witnesses to have seen a gun, and added:

“As to the criticism that what the accused said and did at the Prevolseks was inconsistent with someone who had just acted in self-defence, (defence counsel) reiterated that at the time the accused had just undergone a traumatic experience and was ill. Added to this were the accused’s memory problems. The accused’s behaviour at the Prevolseks had to be put into this context. It was perfectly understandable if his memory became fragmented at that time. His behaviour is explicable as a result of panic and confusion. Even the Prevolseks said the accused did not appear normal”.[65]

[65]T1132.

Having regard to the fact that the judge gave clear and emphatic instructions to the jury concerning the burden of proof and standard of proof, did there remain any risk that the jury would use that evidence in an inappropriate way in reasoning towards a guilty verdict, and was there any requirement that in order to remove such a risk the trial judge had to give directions with the authority of trial judge? These questions are often difficult to resolve, as the many decisions of this Court on questions of consciousness of guilt and post-offence conduct attest, but in this case I am not persuaded that there was a real risk of misuse of the evidence which necessitated that an Edwards direction be given to the jury.

Where the post-shooting conduct was not being relied on to establish consciousness of guilt, but as merely one item in a range of evidence which denied credibility to the defence hypothesis of self-defence, the risk of it being treated by the jury as proof in itself of guilt of murder is considerably reduced. Whether any direction is then required as to the post-shooting conduct, similar to that required in Edwards as to lies, and as specified for post-offence conduct by Winneke, P. in Nguyen[66], will depend on whether there is “a real risk”[67] or a “real danger”[68] that the jury would use that conduct as probative of guilt and without appreciating that innocent explanations for it may be open.
[66]At [20]. If a direction was required, at all, then how much of the full Edwards or Nguyen directions would be required to prevent a miscarriage of justice would depend on the circumstances of the case. It does not follow that all component parts of such directions would be essential in every case: see R. v. Konstandopoulos [1998] 4 V.R. 381, at 388.
[67]Nguyen, at [18].
[68]Dhanhoa, at [34].

Charles, J.A. in Chang, identified the danger of misuse of post-offence evidence which might necessitate a direction from the trial judge was that the jury might have used the evidence “for the purpose of drawing an inference as to the accused’s state of mind at the relevant time”[69] but have done so without having been alerted to the fact “that his behaviour may not have stemmed from a realisation of his guilt of murder, as distinct from a realisation that he had caused the victim’s death and that there were possible explanations such as panic or the desire to escape an unjust accusation for his highly bizarre behaviour”.[70] Similarly, as Chernov, J.A. held in Nguyen[71], the injustice would arise if the jury “were to reason simply that the applicant’s relevant behaviour demonstrated his guilt without first considering alternative explanations or reasons for his deceptive conduct and lies”.
[69]Chang, at [48].
[70]Chang, at [48].
[71]At [31]

The critical difference between the present case and Nguyen is that unlike the situation in Nguyen if the account of this applicant was discredited then the jury were left with evidence which proved guilt of murder. In Nguyen if the lies and other post-shooting conduct of the accused was excluded the remaining evidence was as consistent with accident as with murder. That was a critical factor in explaining why the Court held that the jury was likely to treat and to give particular weight to post-shooting conduct as constituting evidence, in itself, of guilt, and why there was a real risk that in so doing they would apply impermissible reasoning.

If we compare the present case with Chang it may be seen that in Chang there was a substantial body of incriminating evidence but it all fell into the category of post-offence conduct by the accused and there was no independent evidence, nor any admissions by the accused, which could have proved the state of mind required for murder. The risk of misuse of the evidence by the jury was accordingly increased. As Ormiston, J.A. said in Chang:

“As in Nguyen this was a case where the applicant’s subsequent conduct could only be used to establish guilty intent and it was obvious that the prosecution was saying that every single act supported that inference. An appropriate warning was therefore required”.[72]

[72]At [6]

Charles, J.A held in Chang[73] that it was inevitable that the jury would have used the post-offence conduct for the purpose of proving murderous intent and that it was certain that in so doing they would have applied the impermissible process of reasoning that an Edwards direction was designed to address.
[73]At [48]

Edwards, itself, was another instance where the risk of misuse of the evidence of post-offence conduct, i.e. lies, was a real one. In that case the obligation for a direction sprang from the concern that the jury might misuse lies, and treat them as inevitably proving guilt, when alternative explanations for the lies, consistent with innocence were open, when considered by experienced eyes. That risk of misuse of the evidence was of particular concern because when looked at carefully the suggested lies relied on by the prosecutor in Edwards were incapable of amounting to deliberate lies[74] and the innocent explanation for one of the lies was “so plausible that the lie could not have been probative of guilt”[75]. The lies were described as having no probative value and as not capable of revealing anything as to the state of mind of the accused concerning the events.[76]
[74]Edwards, at 211.
[75]Edwards, at 212.
[76]Edwards, at 213.

It is, in my view, important not to lose sight of the circumstances of the particular case when assessing, on appeal, whether a direction as to post-offence conduct is required. It is not a direction to be given in a formulaic way, but when it is given it is because the trial judge has determined that it is necessary in order to ensure a fair trial in the light of the issues and evidence in the trial before him or her.

In R. v. Dupas[77] the President observed:

“It seems to me to be over-technical and removed from the circumstances of the trial, the issues being fought, and the nature and purpose of the evidence in respect of which the impugned directions were given. The circumstances in which the trial judge, in the interests of fairness, should give a direction in accordance with Edwards cannot be confined within, or prescribed by, rigid formulae. Whether such a direction should be given – and in what form – will depend upon a number of factors including the nature of the evidence which is said to require such a direction, the purpose for which it is tendered and the use which the Crown is making of it. In a case such as this one, where the Crown was seeking to establish the applicant’s involvement in the crime through the combined force of a series of circumstances which, in the Crown submission, excluded any hypothesis reasonably consistent with innocence, it will not often be the case that any one particular evidential circumstance will, by itself, amount to an implied admission of guilt by the accused of the crime with which he is charged. Whether the evidential circumstance comprises a statement made to the police or some other conduct of the accused, its probative strength will ultimately depend upon the combined force of all the circumstances of which it forms part.” (Footnotes omitted.)

[77][2001] VSCA 109, at [26]

As to post-offence conduct, the President distinguished the situation in Dupas from that in Nguyen. The latter was a circumstantial case, he said, where the significance of a particular evidential circumstance, and the use being made of it by the Crown, was such that an Edwards direction was required in order to ensure a fair trial[78]. By way of contrast, in Dupas the Crown was relying on the combined weight of a variety of evidential circumstances to prove its case and:

“These circumstances, as I have already sought to demonstrate, were not tendered or relied upon as individual admissions of guilt but as behaviour which, when combined with other circumstances, was consistent only with the behaviour of a guilty man. Again, no direction in accordance with Edwards was asked for and, having regard to the nature of the evidence and the use made of it, such a direction would not have been appropriate. In a case such as this, where the Crown is relying upon the combined force of a number of circumstances to prove guilt, it is not the law that in respect of each such circumstance the jury must be given a consciousness of guilt direction. There may be, as I have said, cases where the nature of a particular piece of evidence and the use being made of it by the Crown will warrant such a direction if the judge perceives that it may be misused by the jury. This, however, was not such a case and the parties did not contend that it was[79].

[78]Dupas, at [26]. In R. v. Bradley (2001) 124 A.Crim.R. 276, at 299, O’Bryan, A.J.A. said of the post-shooting conduct in Nguyen that it “reeked of acts showing consciousness of guilt”.

[79]Dupas, at [29].

In my view, the use to which the evidence was sought to be put in the present case more closely approximates the circumstances in Dupas than those in Nguyen, or Chang.

In assessing whether the jury might have adopted a consciousness of guilt approach in considering the post-shooting conduct the court is entitled to have regard to the way the prosecution conducted the case, and the fact that apart from the two brief “consciousness” comments identified above (which, in my opinion, have far more significance for appellate lawyers and judges than would have been given to them by the jury), the trial was conducted without reference to consciousness of guilt. As McHugh and Gummow, JJ. held in Dhanhoa, when discussing the fact that a direction as to lies in consciousness of guilt had not been sought nor given: “This strongly indicates that it did not occur to those present at the trial that lies as consciousness of guilt was an issue in the trial or that, from the conduct of the case, the jury might think that lies told by the appellant were evidence of a consciousness of guilt”[80]. Similar considerations apply in this case, with respect to post-shooting conduct, and particularly so, having regard to the trial experience of the judge and counsel in the case[81].
[80]Dhanhoa, at [63].
[81]See, too the observations of Winneke, P. in Dupas, at [30].

In the present case, in contrast to Nguyen, Chang, and Edwards, as discussed above, there was an abundance of direct eye witness evidence and a paucity of independent evidence that supported the defence hypothesis. The situation here was similar to that in R. v. Shiers[82]. In that case the prosecution had an abundance of evidence both from admissions of the accused and other sources, including forensic evidence, which would prove his guilt of murder unless the exculpatory account advanced by the accused raised a reasonable doubt. If his account was shown not to be credible then a guilty verdict would follow, and the prosecution highlighted lies and other post-offence conduct in order to demonstrate to the jury that the innocent hypothesis was not credible. It followed, of course, that if the jury concluded that the defence hypothesis was not credible then any lies that had been told in order to support it would probably have been told in a consciousness of guilt. But that and the verdict of guilty were the outcomes of a finding that the defence hypothesis lacked credibility, not the basis on which the guilty finding was sought or would have been based. Thus, the prosecution were not relying on lies and post–offence conduct to prove guilt, by way of an admission, but to destroy the credibility of the accused. As similar approach was being adopted in the present case. In neither case was there a real risk of the jury misusing the evidence.
[82][2003] VSCA 179.

In my opinion, ground 6 is not made out.

The proviso to s.568(1) of the Crimes Act 1958

If contrary to my opinion, the judge was in error in not giving a direction concerning post-shooting conduct and/or lies then that would constitute a miscarriage of justice as understood when that phrase is used in the first paragraph of s.568(1) of the Crimes Act 1958[83]. The question arises whether that resulted in a substantial miscarriage of justice so as to prevent the application of the proviso to s.568(1) of the Crimes Act 1958.
[83]See R. v. Konstandopolous, at 391-392.

There would be a substantial miscarriage of justice if the error constituted a fundamental irregularity in the trial going to the root of the trial (see Wilde v. The Queen)[84] or else if the applicant had been deprived of a chance which was fairly open to him of being acquitted (see Mraz v. The Queen[85]; R. v. Gallagher[86]) or lost a real chance of acquittal (see Wilde v. The Queen[87]; R. v. Storey[88]).
[84](1988) 164 CLR 365, at 373.
[85](1955) 93 CLR 493, at 514.
[86][1998] 2 V.R. 671, at 685.
[87]At 371.
[88](1978) 140 CLR 364, at 376.

There are a number of factors which persuade me that the applicant had not lost a real chance of acquittal by the absence of a direction as to lies or post-shooting conduct, even if such directions ought to have been given. So little was said by the prosecutor which might have raised the potential for the jury to treat the lies or post-shooting conduct as evidence of consciousness of guilt that any risk of the verdict being the product of misuse of that evidence was very small. If a direction should have been given then its primary purpose would have been to warn the jury that there may be other explanations to explain lies and the post-shooting conduct apart from consciousness of guilt. In this case the judge did not give that warning himself, with his authority, but counsel addressed the matter fully and the arguments of counsel were clearly stated by the judge. In the circumstances of this case, having regard to the abundant direct evidence, there is no possibility that the jury would not have appreciated that alternative explanations were open, and what they were.

I am not at all persuaded that the applicant lost a real chance of acquittal by the omission of a direction by the judge, should such direction have been required as a matter of law.

The fact that no exception was taken to the charge by experienced counsel, and no direction was sought, is a significant pointer to the fact that those representing the applicant at trial did not perceive any risk of unfairness or any reduction to his prospects of acquittal arising from such omission. A tactical decision by counsel not to seek a consciousness of guilt direction would not conflict with any rule of law, nor would it deny consideration by the jury of an issue which as a matter of law ought to have been considered. The judge is entitled in those circumstances to adopt the approach which counsel urges, provided that in so doing the fair trial of the accused is not prejudiced: see R. v. Arundell[89].
[89][1999] 2 V.R. 228, at [50]-[51] per Callaway, J.A.

The failure to seek a re-direction means that to succeed the applicant must show that the failure to direct the jury as to the evidence constituted a miscarriage of justice[90]. McHugh and Gummow, JJ. in Dhanhoa[91], speaking of lies but equally applicable to post-offence conduct, held that that required there to be no reasonable possibility that the verdict of guilty would have been different if the trial judge had given an Edwards direction. I do not believe there was such a reasonable possibility in this case.
[90]Dhanhoa, at [38] per McHugh and Gummow, JJ.
[91][64]. Their Honours, at [49] applying Simic v. The Queen (1980) 144 C.L.R. 319, at 332, also stated the test of miscarriage for the failure to direct in terms that it was reasonably possible that the failure to so direct “may have affected the verdict”.

In my view this is a case which demonstrates very clearly the importance of an appellate court not overlooking the dynamics and reality of a trial as it was contested before the jury.

In a dissenting judgment in Doggett v. The Queen Gleeson, C.J. observed, in a passage which is of general relevance:

“The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly issues which have been presented to them by the parties.”[92]

[92](2001) 208 C.L.R. 343, at 346. As to the significance of a decision by experienced counsel not to seek a direction see too R. v. Arundell [1999] 2 V.R. 228, at 247-250, per Callaway, J.A.

This was an exceptionally strong case. Indeed, there was force in the submission of Mr Silbert, for the respondent, that not only was it an overwhelming Crown case, the defence case bordered on the incredible. The jury were in a good position to assess the eye witness evidence and that of the applicant. The claim of self-defence rested entirely on the credibility of the applicant, which the jury were in a position to assess. The charge by the judge was a very fair one which enabled the jury to assess the case by reference to the issues as they were identified and contested at trial.

Conclusion

I conclude that error has not been shown as asserted in grounds 5 or 6 but if error has been shown then whether taken together or separately it has not been shown that that produced a substantial miscarriage of justice, and it would be appropriate to apply the proviso to s.568(1).

In my opinion, therefore, the application for leave to appeal against conviction should be dismissed.

ASHLEY, A.J.A.:

In my opinion, for the reasons explained by Eames, J.A. there was no error in the judge’s charge. If that was wrong then like his Honour I consider that that the circumstances of the case are such that the proviso to s 568(1) of the Crimes Act 1958 should be applied. In either event the consequence is that the appeal should be dismissed.

---

[2003] VSCA 180

18 November 2003