R v Nguyen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 319 of 1999

THE QUEEN
	v.
DAT TUAN NGUYEN

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JUDGES:	WINNEKE, P., CHERNOV, J.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2000
DATE OF JUDGMENT:	27 February 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 1

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Criminal law – Murder – Post-offence lies and deceptive conduct by applicant – Ruling by trial judge that such conduct relevant only to credit – Whether conduct nevertheless relied upon by prosecutor as evidence of consciousness of guilt – Whether Edwards direction required – Whether miscarriage of justice absent such direction – Failure by prosecutor to call witness – Whether trial judge erred in directions concerning inferences, motive, manslaughter – Whether alleged errors in combination led to miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.G. Hicks	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. M.J. Croucher	Cole & Magazis

WINNEKE, P.:

The applicant Dat Tuan Nguyen (“the applicant”), now aged 45 years, was convicted on 12 November 1999 on a count of murdering his step-son Duc Doan Tran (“the deceased”) at about mid-night on 27 June 1998 in the kitchen of the home of the applicant and his de-facto wife Ngoc Thi Trinh at 38 Summerhill Road Footscray. The applicant was alleged to have killed the deceased with a shot fired deliberately from a double barrelled shot gun at close range. The shooting occurred not long after the applicant had returned home from a friend’s house where he had spent the evening with other members of the Vietnamese community. In the course of the evening – described as a “happy one” – he had consumed both beer and spirits. The applicant had no prior convictions. On 17 December 1999, the trial judge sentenced him to be imprisoned for a term of 17 years and directed that he serve a period of 12 years before becoming eligible for parole.

The applicant has sought leave to appeal against his conviction. A number of grounds were argued on appeal, each of which has been dealt with in the judgment of Smith, A.J.A., whose draft reasons I have had the benefit of reading, and whose statement of the facts I gratefully adopt. I agree with his Honour, and substantially for the reasons which he gives, that grounds 1, 3, 5, 6(a), 7 and 8 must fail. Although I have some reservations about the manner in which the matter of “motive” was dealt with at the trial (ground 6(b)) – to which I will hereafter refer – it is unnecessary for me to conclude whether a miscarriage of justice occurred as a consequence of “motive” being left to the jury. Because, in my view, grounds 2 and 4 have been made out, I shall confine my attention primarily to those grounds. They are effectively encapsulated in ground 4 which asserts:

“The trial judge erred in his directions concerning lies, and in particular erred:
(a)in failing to give a direction in accordance with Edwards v. R. (1993) 178 C.L.R. 193;
(b)in failing to direct the jury that there may be reasons for the telling of a lie other than those which might be thought to affect the applicant’s credit, including panic, the desire to escape an unjust accusation, the desire to avoid a consequence extraneous to the offence, the desire to organize the deceased’s burial according to ritual, and cultural and personal factors that led to the applicant’s distrust of police.”

The Issues in the Trial

The substantial issue which arose in the trial of this action was whether the prosecution had proved that the applicant had deliberately discharged the firearm with intent to kill or do really serious injury to the deceased. The prosecution claimed that the applicant did deliberately, and with the relevant intent, shoot the deceased. The applicant, in his evidence, claimed that the killing was unintentional and that the gun had discharged “accidentally” whilst he was cleaning it. In the absence of any eyewitness to the shooting, the issue was not without its difficulties in resolution, because there were objective facts and circumstances which lent support to both claims. On the one hand, the prosecution laid emphasis upon the improbability of bringing into the kitchen of the home, at midnight, a shotgun which the applicant claimed not to have known was loaded, for the purposes of cleaning it. On the other hand, counsel for the applicant was able to point to a number of factors which suggested the improbability of the voluntary and intentional shooting by the applicant of his 14 year old step-son. These factors included:

(a)the fact that the kitchen adjoined the lounge room where the child’s mother and sister, to the applicant’s knowledge, were sitting;
(b)the lack of any apparent motive; it being uncontradicted that the applicant had been generous to the step-son and had acted like a father towards him;
(c)the fact that the applicant was in the kitchen, presumably with the gun, before the deceased entered it;
(d)the fact that the shot, although discharged from a distance of little more than a metre, hit the child in the shoulder;
(e)the fact that there was no evidence of any argument between the applicant and the step-son preceding the shooting, which apparently occurred very shortly after the step-son had entered the kitchen from the adjoining lounge-room;
(f)the fact that the applicant had, in a conversation with his wife and secretly recorded by police, asserted that the shooting was accidental.

It was, no doubt, considerations such as these which – in imposing sentence – moved the trial judge to make a finding that …
“you did not intend to kill the deceased, but intended to cause him really serious injury.”

The “matters” to which his Honour referred, in making this finding, were the apparent lack of motive; the applicant’s lack of familiarity with the consequences of a “shot-gun blast”; the fact that the applicant “shot the deceased neither in the head nor close to the heart”; and the fact that the applicant had drunk an amount of alcohol which was sufficient to have impaired his capacity to think clearly.
The “Post-offence Behaviour” of the Applicant

Upon the issues of voluntariness and intent, the applicant had not advanced his cause by his conduct after the shooting. He had, almost immediately, left the house by the rear door and disposed of the weapon, first by concealing it in bushes nearby and, later, by disposing of it in the waters off Altona beach. It was never recovered. Thereafter, he pretended to the police (when, inevitably, they arrived) that some unknown intruder had been responsible for the shooting – and not him. He claimed to have been sitting in the lounge room with his wife. He had also encouraged his wife and step-daughter to make similar allegations to the police. These stories had initially baffled the investigating police, particularly in light of the fact that they had not been able to locate any gun-shot residue on the person or clothing of the applicant – in itself a somewhat surprising consequence if the applicant had had his hands on the firing mechanism of the gun when it discharged. The true facts only became known to the police when the applicant’s wife, two days after the shooting, went to the police and told them that the applicant had been responsible for the discharge of the fire-arm. Consequently, and unbeknown to the applicant, the wife co-operated with the police when they installed a listening device in the house connected to a recorder located in a listening outpost manned by police. Thereafter the wife, no doubt pursuant to police instructions, engaged the applicant in conversation about the circumstances in which the shooting had occurred. That conversation, which took place in the Vietnamese language, was recorded. A translation of it was provided to the jury. Its content made it clear that the applicant was accepting responsibility for the shooting, but it also made it clear that the applicant was contending, as he did in evidence before the jury, that the shooting was accidental, that he loved the deceased, and that the gun had discharged whilst he was “fiddling” with it. Thereafter, however, in a recorded record of interview with the police (but before police had access to a translation of the secretly recorded conversation) the applicant had persisted in his account that he was not involved in the shooting.

The Prosecutor’s Use of the “Post-offence Conduct”

The “post shooting conduct” of the applicant provided fertile ground for the prosecution in urging the jury to find the issues of voluntariness and intent proved by the Crown. In his final address the prosecutor exhorted the jury to find that the applicant was an “unmitigated liar” who had, before police arrived, “removed all evidence of the existence of a gun … and deliberately so”. According to the prosecution, the applicant’s “first lie” was to “get rid of the shot-gun” to mislead the police. He lied, as the prosecutor told the jury, when he told the police that an “intruder” had “come in the back door of the house” and then departed. This was, so the prosecutor said, “a pack of lies as to the critical matters”. Again he lied on “the critical issue” when he later told police in his record of interview that he was not involved in the shooting. The prosecutor said:

“… you’re his jury, so he’s got to try and con you, fool you, lie to you as he lies to his wife, as he lies to the police. Why did he get rid of the gun? If, as he suggests, this was an innocent tragic accident where this boy got shot, why get rid of the gun, why not wait for police to get there and say: look, it’s a terribly tragic accident, I should not have had the gun, it went off, it’s a nightmare. His first move after the shooting is to get rid of the gun so that when police and the ambulance people turn up, it’s gone, it’s gone even as at today.”

And again, towards the conclusion of his address, the prosecutor said:
“If, in fact, it was an accident, if there was any suggestion it was an accident, that gun would’ve been there when the police first arrived at the scene; there would’ve been no reason to get rid of it. There would’ve been no reason to tell lies about it; there would’ve been no reason to persist in those lies on each occasion he dealt with police. He was hiding, he was telling lies about it, and that means you look at those lies against what in fact he has told you here.”

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.

The Submission of “No Case” and the Judge’s Reasons for Rejecting it

That this was the prosecutor’s intention was made clear at the end of the Crown case when counsel for the applicant submitted that the murder charge should be withdrawn from the jury on the basis that the prosecution had not, upon the evidence, excluded a reasonable hypothesis that the shooting and death were unintentional[1]. In response to this submission, the prosecutor contended that the necessary intent to support a charge of murder could be inferred, inter alia, from the lies told to the police by the applicant about the “phantom intruder” and the concealment of the weapon. In response, his Honour said that he had “difficulty” in regarding the statements to police at the scene – and, later, in the record of interview – as deliberate lies evidencing a consciousness of guilt. His Honour indicated that this was a case where “(t)he credibility of the accused is in issue in the broad sense that he’s given different statements at different times, and as to that credibility what he says at different times might be in issue … . Now that, I would have thought, is a context in which lies might be seen to be appropriately left to the jury rather than in the context of a lie as an example of behaviour indicating consciousness of guilt of the particular crime with specific intent.”
[1]Knight v. R. (1992) 175 C.L.R. 495.

The prosecutor contended that it was not only the lies told to the police which were relevant; it was also the fact that the applicant had disposed of the weapon “to hide any involvement whatsoever in the shooting”.

Counsel for the applicant continued to press his Honour for the removal of the charge of murder from the jury on the basis that the evidence could not support a finding that “the inference of intent to kill [or do really serious injury] was the only reasonable inference open on the evidence”. His Honour rejected this submission saying that he was “against [counsel]” and that he would “provide my reasons at a later date”. In the course of giving his reasons on the following day, his Honour said:

“It seems to me that the jury would, given all the circumstances in which the accused claimed that the shooting was an accident, be likely to be highly sceptical about that claim. It was not a claim made either promptly or with detail. It was a claim made after the shotgun had been removed from the scene by the accused with alacrity and before police arrived. It was a claim made after the accused had acted towards the sister of the deceased in the presence of a policeman in a way said to have been aggressive and threatening. It was a claim made after the accused had told police that the shooting must have been the work of an intruder. … I had no reservations in concluding that there was evidence sufficient to warrant a jury inferring that the accused had the specific intent for murder.”

The Evidence of the Accused and his Wife

It was in these circumstances that the applicant gave evidence and called his wife. The applicant gave evidence that the gun discharged accidentally whilst he was cleaning it with an old “T shirt” and whilst he was sitting on the floor holding it between his thighs. At the time it discharged, the deceased was standing in front of him leaning over and talking to him. He said that, after the shooting, his wife had come into the kitchen and was screaming. His wife had told him not to take the deceased to the hospital. It was then that, “because the gun was not good and … it was the gun that cause the accident”, he went through the back door and threw the gun away in bushes on the other side of the road. He said he had later taken the gun and thrown it into the sea. Thereafter, he said, he had lied to the police about the circumstances of the shooting both at the scene and in a record of interview which had followed the recorded conversation with his wife. These things he had done, he said, for a variety of reasons. Firstly because he thought he would be imprisoned and he would be unable to make proper arrangements for the deceased’s burial which was very important for Vietnamese people. Secondly because his father had been detained and assaulted by police in prison in Vietnam because he had worked for the French Government. He, too, was fearful that he would be unjustly accused and detained. What he had told his wife in the secretly recorded interview – namely that the gun had discharged accidentally – was the truth.

The applicant’s wife, whom the prosecutor regarded as unreliable, and declined to call, gave evidence supporting him. She said that the relationship between the applicant and the deceased was an harmonious one. On the night of the shooting, she had seen the applicant in the kitchen cleaning the gun; that she had gone into the lounge room and was talking to the deceased and her daughter whilst feeding the young child. She had asked the deceased to go to the kitchen and get some tissues to clean some milk which had spilled. She had heard the deceased and the applicant talking – apparently amicably – when she heard “an explosion”. She had run into the kitchen and seen the applicant sitting on the floor with the gun between his legs and saying “Oh my God”. She further said that, when she had gone to the police some two days later, and had told them that her husband was responsible, she was angry and depressed and had made allegations about him which were not true so that she could “put the guilt upon him”. She agreed that, at all times, the applicant had told her that the death of the deceased was an accident.

Further Submissions at Close of Evidence by Prosecutor as to “Post-offence Conduct”

In cross-examination, it was put to the applicant that his conduct in disposing of the weapon after the shooting and his pretence thereafter to the police that it was the work of an “intruder” was conduct deliberately engaged in by him to “cover up” the truth – namely that the shooting was intentional. Indeed, following the conclusion of the evidence, the prosecutor submitted to the judge that he should be entitled to use this evidence as “consciousness of guilt” on the part of the applicant. The prosecutor said that this conduct amounted to an endeavour by the applicant “to totally absolve himself from any involvement whatsoever” in the shooting. That, the prosecutor submitted “goes to consciousness of guilt”. His Honour, however, took the view that because the applicant was “no longer denying holding the gun at the time that [it] was discharged” meant that the preceding conduct was “not material” to the issues which remained in the trial. Because of this, his Honour concluded:

“That’s why consciousness of guilt was appropriate at a different time but not appropriate now in the context of this trial.”

The prosecutor protested that the evidence remained relevant to the remaining issues in the trial because it demonstrated “consciousness of guilt”. His Honour responded:
“I’d be against you. If you were to raise it in that way, I’d be telling the jury that it was inappropriate that you raised it in very clear terms. … You can use it against credibility and the credibility may bring in the behaviour in that there’s been a change in his [i.e. the applicant’s] position with respect to matters that go to his behaviour, but it seems to me that it can’t be a matter raised in the context of consciousness of guilt where the only issues left are whether it was a voluntary act and whether there was a specific intent.”

To this, the prosecutor replied:
“I hear what your Honour says and I am bound by your Honour’s ruling. I’ve put my submission.”

The Judge’s Directions

His Honour ultimately directed the jury on the basis that the lies told by the applicant should be used by them as matters going to his credibility. In the course of giving what might be termed general directions as to the law, and in particular as to how the jury should deal with prior inconsistent statements made by witnesses, his Honour said:

“I turn to the subject of lies, or alleged lies, on the part of the accused.   The accused has given evidence before you, and he has spoken at length to the police and that evidence is before you as is the evidence of what he said on other occasions.
[The prosecutor] put to you that the accused lied in many respects in what he said to the police and in his evidence before you and on other occasions.   I need to say something as to how you should treat what you find to be lies on the part of the accused, if you do so find.
It is a matter for you to assess the credibility of the accused.   If you are satisfied that he has lied when giving his accounts to the police or when giving his evidence to you or otherwise, you can take that into account in assessing the credibility of his evidence.   [The prosecutor] dealt with a number of statements made by the accused which [he] said were lies.   He did not say to you that the accused has lied and therefore he is guilty of the crime with which he is charged, and I tell you you are not entitled to go through the process of jumping from – we are satisfied the accused has lied, and then to say if he has lied, he must be guilty of the crime with which he is charged.   There are differences in the accounts given by the various witnesses, including the accused, and as I have said before, you do not have to, and you could not, reconcile all those differences.   You will or may have to assess which parts of inconsistent accounts you treat as being true and which parts you treat as not being true.   Just as with the evidence of other witnesses, so too you have to assess what parts of the account of the accused to believe where those parts are inconsistent with other evidence or are, in your assessment, incredible.

You will have to make your assessment of the credibility of each witness, and in doing so you may find that that particular witness has lied. You may find that in relation to more than one witness, you may find that in relation to the accused. What is important, so far as the accused is concerned, is that you cannot take the further step of saying, if he lied he must be guilty of the crime with which he is charged.”

As general directions to the jury as to how they should attend their task of assessing witnesses and the credibility of their evidence, these directions appear to me to have been adequate. But, insofar as they were intended to be instructions as to how the jury should deal with the applicant’s “post-shooting behaviour”, they did not in my view go far enough. I will return to this matter hereunder.

Having dealt with the law as it applies to “inconsistent statements”, his Honour then dealt generally with the law as it applies to the drawing of inferences. He told the jury, in my view correctly, that before they could draw any inference as to the existence of any element of the crime charged, they had to be satisfied that such inference was the only inference which could reasonably be drawn from the facts upon which the inference was based. He said:

“Above all, you must not draw an inference that an accused person is guilty unless it is the only inference that is reasonable in the circumstances. … All of this follows from the legal requirement that you cannot convict an accused person unless you are satisfied of the guilt of that person beyond reasonable doubt. If another inference were open, if there was a reasonable hypothesis consistent with innocence, there would be a reasonable doubt. I have spent some time on the subject of inferences and that is because it is important as you have to consider what inference is appropriate to draw as to, at least, the matter of murderous intent, and you will understand what I say in relation to that later.”

His Honour then turned his attention to “the elements of the crime of murder”. He then referred to the two elements in issue – those of “conscious and voluntary act” and “intent”. In respect of the element of “intent”, his Honour told the jury that that was an “issue in the trial”. He said:

“The prosecution must prove that there was a specific intent, namely that the accused had the intention either to kill or to do really serious injury to the deceased. … My next point as to intention is linked back to what I said to you as to the drawing of inferences. The intention of a person, or that person’s state of mind at the relevant time, may be inferred by you from evidence as to facts in different areas. Those matters include how the person has acted and what he has said at the time of the actions, beforehand or afterwards, but the facts from which the inference can be drawn may also come from evidence from other sources. … You must be satisfied that there is no other inference reasonably open on the evidence than that the accused had the intention which is required for murder.” (my emphasis)

His Honour then turned to what he described as “the issues raised in this case and the first is as to whether the accused was acting voluntarily; and the second is as to whether the accused had the requisite intention”. He told the jury that there was no “clear evidence” as to what caused the discharge of the firearm and that, unless they excluded as a reasonable possibility that the discharge was accidental, they could not convict. His Honour told the jury that, in reaching their conclusion on this issue, they would have “to review the evidence of the accused in the light of other evidence”. So far as the element of “intent” was concerned, his Honour said:

“… What has been said by the accused has raised at least the possibility that he did not have the required intention for murder, and you will have to consider whether that possibility is a reasonable possibility. If you see that it was a reasonable possibility then the prosecution has not satisfied you beyond reasonable doubt as to the element of intention. …”

His Honour then canvassed with the jury the evidence to which they might look when considering the issue of “intent”. He said:
“You might start with the evidence of what the accused said on the various occasions that he spoke to the police, or before you, or otherwise and you might look at the evidence of how much alcohol the accused had to drink. … You might like to look at the evidence of the various witnesses as to the relationship between the accused and the deceased and as to how the accused was seen to behave before and after the shooting. You might look at the nature of the injury which caused death. You might look at the evidence of the police investigators as to various matters including their inability to locate signs of the firing of a firearm … .” (emphasis added)

His Honour went on:
“Then there are matters of intermediate questions you might ask yourselves that include what motive, if any, did the accused have to want to harm the deceased. What inference is it reasonable to draw from what you know as to the accused’s actions immediately before and after the shooting? … How much was his behaviour affected by what he had to drink? Why did the accused have a shotgun in the kitchen? What was he doing with it there? … What conclusion do you draw from the different positions taken by the accused?” (my emphasis)

Grounds 2 and 4 of the Appeal against Conviction

I have set out in some detail the manner in which the applicant’s post-offence conduct arose and was used at the trial, and the manner in which it was dealt with by the learned judge in his directions to the jury, to place in context the applicant’s grounds of appeal (grounds 2 and 4) that the trial judge erred in his directions to the jury by “failing to give to the jury a direction in accordance with Edwards v. R.[2]” and “in failing to direct the jury that there may be reasons for the telling of a lie other than those which might be thought to affect the applicant’s credit, including panic, the desire to escape an unjust accusation, the desire to avoid a consequence extraneous to the offence, the desire to organize the deceased’s burial according to ritual, and the cultural and personal factors that led to the applicant’s distrust of police”.
[2](1993) 178 C.L.R. 193

In the peculiar circumstances of this case, it is my opinion that this ground has been made good. Notwithstanding the trial judge’s general directions to the jury that they could only use such lies as they found the applicant had told to police in assessing the credibility of his evidence, and that they could not “jump from” lies so found to guilt, it seems to me that there was a real risk in this case that the jury would use the applicant’s immediate post-offence conduct as probative of his guilt. It was the conduct of the applicant, immediately after the shooting, in concealing the weapon and thereafter pretending to police that an intruder had shot the deceased, which, because it was capable of being used to prove intent, put the applicant at risk in the absence of proper directions. It was this combination of the concealment and pretence which gave the evidence its probative value. It did not lose its probative value, as the judge appears to have thought, simply because the applicant thereafter conceded that he was holding the gun when it discharged. If anything, that only accentuated the materiality of the evidence because the issues were narrowed to “voluntariness” and “intent”. These issues could only be determined by the drawing of inferences and the jury were invited to draw those inferences in part by relying upon the post-offence behaviour of the applicant. Post-offence conduct, including lies, only becomes probative because it stems from a “consciousness of guilt”. The strength of its probative value, however, will depend upon its nature and the use which is sought to be made of it. It will rarely be the case that its strength is such that it can prove guilt directly. Generally, as here, it will form part of the body of circumstantial evidence from which the jury is asked to infer the guilt of the accused. Where that is the case, it has been said that the employment of the term “consciousness of guilt” is misleading because it suggests a conclusion about the conduct which undermines the presumption of innocence[3]. However, where the conduct is being used, and is capable of being used, to prove guilt, the trial judge must, in my view, be astute to the clear possibility that the jury will so use it, and to give such directions as are needed to ensure that it is not misused.
[3]Zoneff v. R. (2000) 74 A.L.J.R. 895 at 907-8 per Kirby, J.

I would have little doubt that, in directing the jury as he did – thereby steering clear of the pejorative term “lies told out of a consciousness of guilt” – his Honour was intending to give directions favourable to the applicant. It is a practice not uncommonly followed by trial judges in this State. In most cases – particularly those where the alleged lies are claimed to have been told “in court” – a direction to the jury of the kind given by the judge in this case will be adequate. Lies told by an accused person – whether in or out of court – will, generally, not be probative of guilt but only go to his or her credit. It is only in those cases where they are capable of being used to demonstrate a realization or “consciousness” of guilt of the crime charged that they acquire a probative value. But each case must depend upon its own facts, and a ritual adherence to the practice of telling juries that lies can only be used in assessing credibility may expose the accused to a risk of injustice which the judge’s charge is designed to avoid[4].
[4]cf. R. v. Bandiera & Licastro [1999] 3 V.R. 103 at 107.

I am acutely aware that the task of the trial judge, in cases where the prosecution is relying upon post-offence conduct (including lies) alleged to have been engaged in by the accused, is not an easy one. There was a time when prosecutors would go to extreme lengths to assert, from material inadequate for the purpose, “consciousness of guilt lies” as support or corroboration for a witness whose evidence was required by law or practice to be so supported. A ready acceptance by trial judges that such “lies” could constitute corroboration has been a fertile field for appellate intervention[5]. However, the overriding obligation of the trial judge is to give such directions as will ensure, as best he can, that the accused secures a fair trial according to law[6]. Of course, the nature of the directions required to be given must depend upon the issues which are being fought between the parties at the trial. In this case the real issue being fought between the parties was whether the firearm was discharged by the applicant voluntarily and with the intent to kill or cause really serious injury, or whether it discharged by accident. 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 the 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[7]. 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 recognized that, while evidence of 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 R. v. White & Anor.[8] 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[9]. 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 v. R. (supra)[10]. 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 realization 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[11].

[5]cf R. v. Heyde (1990) 2 N.S.W.L.R. 234 at 236-7, per Gleeson, C.J.; “Criminal Law Update” (1999) 4 T.J.R. 217 at 250 per Wood, J.)

[6]Longman v. R. (1989) 168 C.L.R. 79 at 86; Zoneff v. R.(2000) A.L.J.R. 895 at 906 per Kirby, J.

[7]cf Shepherd v. R. (1990) 170 C.L.R. 573 at 579 per Dawson, J.; R. v. Kotzmann [1999] 2 V.R. 123 at 128-9 per Callaway, J.A.

[8](1998) 125 CCC (3d) 385 at 398; see also Edwards v. R., supra, at 211.

[9]cf. Broadhurst v. The Queen [1964] A.C. 441 at 451.

[10]see also R. v. Faure [1999] VSCA 166 at [28] per Brooking, J.A.; White & Anor. v. R. (1998) 125 CCC (3d) 385 at 404; R. v. Renzella [1997] 2 V.R. 88 at 92.

[11]Edwards v. R., supra at 210-1 per Deane, Dawson and Gaudron, JJ.; Osland v. R. (1998) 197 C.L.R. 316 at 333 per Gaudron and Grummow, JJ.

Such directions, in my view, were called for in this case because the circumstances of the shooting and the background and culture of the applicant were capable of providing a rational explanation for his post-offence conduct other than a realization of his guilt of the offence charged. Panic and shame at having just shot his step-son in close proximity to his mother, a legitimate desire to avoid being held responsible for what had happened, and fear of being falsely implicated in a charge of murder either by police or members of his family were open to explain such conduct, even if the shooting had been accidental. Indeed, this is how the applicant sought to explain it. In these circumstances, it seems to me that a failure to give a direction, accompanied by the authority of the judge’s office, of the type to which I have referred carried with it a perceptible risk of injustice to the appellant. The direction which was given failed to meet that risk. To simply tell the jury, in giving directions generally about the credibility of witnesses, that, in assessing the credibility of the accused and his evidence, they could – if so satisfied – take into account the fact that he had lied “when giving his accounts to the police or when giving his evidence to you or otherwise” did not, in my view, go far enough. Nor was it sufficient to tell the jury, in the circumstances of this case, that if they were satisfied that he had lied in respect of some matter, they could not take the further step of saying that “if he lied he must be guilty of the crime … charged”. These directions concentrate upon what the applicant said; not upon what he did. The very purpose of the directions which, in my view, were called for in this case is “to counter the jury’s natural tendency to leap from evidence of flight or concealment to a conclusion of guilt, and to ensure that alternative explanations for the accused’s conduct are given full consideration”[12]. 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 absence of such intent. By confining the directions in the manner to which I have referred, they were – I think – apt to be confusing to the jury when, later in his charge, the learned judge told them that, in considering what inferences they could draw as to the applicant’s intent, they were entitled to take into account his post-offence conduct. Although those directions were given in general terms – and appear to be cautiously avoiding specific reference to the concealment of the weapon and the pretence which followed it - they were, as I have said, inviting the jury to go beyond using evidence of such conduct merely in assessing the credibility of the accused and to use it in proof of his guilt. Indeed, it is apparent from what his Honour had said in rejecting the “no case” submission that such conduct was open to be used by the jury in determining the issue of guilty intent. If it was the view of the judge, as it seems it was, that the applicant’s post-offence behaviour could be used to prove the requisite intent for murder, then it was highly likely – particularly in the light of the prosecutor’s strong reliance upon such conduct – that the jury would so use it also. In those circumstances, it became important for the judge to tell the jury that there may be explanations for the applicant’s conduct other than a realization of his guilt of murder, to tell them what those possible explanations might be, and to tell them that they could only use the evidence of the applicant’s conduct as evidence of murderous intent if, at the end of the day, they were satisfied that there was no other innocent explanation available to explain that conduct[13]
[12]R. v. White, supra, at 404.
[13]cf. Edwards v.R., supra, at 214, per McHugh, J.; R. v. Rice [1996] 2 V.R. 406 at 423-4.

For the reasons expressed, I have come to the conclusion that there was a material misdirection in this case. It necessarily follows that I cannot accept the submission made to this Court, on behalf of the respondent, that the learned judge “did not leave lies as consciousness of guilt” and that his directions were “if anything, favourable to the applicant”. I do not quibble with respondent’s counsel’s submission that an “Edwards type direction” should not be given to juries where lies, or other conduct of the accused, only go to credit. However, and for the reasons given, it is my view that the jury were being invited in this case to use the post-offence conduct as evidence of guilt and that, in those circumstances, a direction of the type to which I have earlier referred was required. It is true, as counsel submitted, that the applicant’s trial counsel took no exception on this point to the judge’s charge. However that may well have been due to the previous and, strongly expressed view given by the trial judge that he would not countenance any suggestion that the applicant’s post-offence conduct evidenced “consciousness of guilt”. In those circumstances and where, as I think has happened here, there has been a material misdirection constituting a miscarriage of justice, it would in my view be inappropriate to inflexibly apply the general rule that the applicant should not be permitted to rely upon a criticism of the judge’s charge which had not been taken by way of exception[14].
[14]cf. R. v. Clarke & Johnstone [1986] V.R. 643 at 662; R. v. Renzella, supra, at 94.

I am, accordingly, of the view that there will have to be a re-trial. That conclusion relieves me of the need to consider another ground of appeal (ground 6 (b)) in which it was contended that the judge had erred in his directions concerning motive. I agree, for the reasons given by Smith, A.J.A., that it was not incumbent upon the judge, in the circumstances of this case, to direct the jury that evidence of motive had to be proved beyond reasonable doubt. However, counsel also submitted that his Honour should have directed the jury that there was no evidence of motive which was fit to be left to the jury and was in error in inviting them to consider motive. I would simply say that, on the evidence which was available at this trial, there was no evidence of motive. The prosecutor put to the jury that the evidence of motive was “very thin” and that “you have to really dig it”. In his opening address he had contended that there was “bad blood” between the accused and the deceased. There was no evidence to support this contention. In his final address he put to the jury that they might infer, as the judge told the jury, that there was “a lack of harmony in the family”. But such evidence as there was suggested disharmony only between the applicant and his wife. There was no evidence of disharmony existing between the applicant and the deceased. The evidence was to the contrary. The only suggested motive was speculative and, in my view should have been removed from the jury’s consideration. The motive suggested by the prosecutor in his final address was not the one which he had suggested to the jury in the course of his opening address. Although, as his Honour told the jury, the Crown was not obliged to prove a motive its inability to do so was a matter of significance[15].

To leave to the jury a speculative motive as evidence of proof of guilt seems to me to have been unfair to the applicant. It “watered down” the applicant’s contention that the absence of motive was a significant factor in rebuttal of the Crown’s allegation of intentional killing. If, at the re-trial, the evidence remains the same, careful consideration should be given to the question whether motive should be left to the jury as evidence of guilt.

CHERNOV, J.A.:

[15]R. v. Ritter, Court of Criminal Appeal (NSW) 31 August 1995, per Gleeson, C.J. at p.6; Chamberlain v. R. (1984) 153 C.L.R. 521 at 572 per Murphy, J.

I have had the benefit of reading in draft the judgments of the President and Smith, A.J.A. Essentially for the reasons given by Smith, A.J.A, I agree that there is no merit in grounds 1, 3 and 5 to 8. Like the President, I am of the opinion that the direction of the learned trial judge to the jury in respect of the applicant’s lies and deceptive conduct following the shooting, was not sufficient to secure for him a fair trial according to law.

The substantive issue in the trial was whether the applicant deliberately shot the deceased with the intention of killing him or causing him really serious injury. At the end of the Crown case, the applicant’s counsel submitted that the charge of murder should be withdrawn from the jury because on the evidence, the jury could not be satisfied beyond reasonable doubt that the only inference that was open was that the applicant had the requisite intent. It is plain that even at that stage of the trial, his Honour and counsel for the applicant were aware that the Crown case involved the claim that the applicant’s conduct after the shooting in relation to the weapon and his telling of lies to the police reflected a consciousness of guilt on his part. For instance, the applicant’s counsel said that the Crown was relying on “false denials” by the applicant as a basis from which the jury would be invited to draw the inference of consciousness of guilt. Although his Honour said that he did not regard the case as “being a consciousness of guilt case”, the prosecutor contended that the applicant’s conduct after the shooting - more particularly, his concealment of the weapon, his unlocking of the back door and telling or implying to the police that an

intruder had entered through it and shot the deceased (“the deceptive conduct”) and his other (admitted) lies to the police - was evidence from which the jury could infer consciousness of guilt on the part of the applicant. In the course of his submissions, he said:
“.. the jury are entitled to say that the deliberate hiding of the gun is so that he will hide the fact that he has deliberately shot the deceased; that he is creating a totally false story, removing any physical evidence that is contrary to that story, namely, removing the firearm at the earliest opportunity and that is because he has a consciousness of guilt that he has deliberately shot the deceased.”

The issue of whether the applicant’s relevant behaviour could be left to the jury as evidencing consciousness of guilt was, however, left unresolved at that stage of the trial in the sense that his Honour did not rule on the matter.

As events transpired, the prosecutor effectively put to the jury through his cross-examination of the applicant (and later, in his final address) that they should treat the applicant’s deceptive conduct and admitted lies as evidence from which they could reason that he had deliberately shot the deceased with the requisite intent. For example, during the cross-examination of the applicant it was put to him that he knew that, if he told the police how the deceased was killed, he “would be in trouble”; that he knew that if he told the police “the truth”, or if the police knew “the truth about how the shooting occurred you would be in trouble with the police”; and later that if the police found the gun “it might cause you some problems.” It would not be surprising if these suggestions would have caused the jury to query whether the applicant engaged in the deceitful behaviour because he was conscious of his guilt.

That the prosecutor had effectively invited the jury to regard the applicant’s relevant behaviour as evidence probative of guilt must have been recognised by his Honour because, at the conclusion of the defence evidence, the learned trial judge raised with him whether he intended to address the jury on the basis that the applicant’s deceptive conduct and lies were evidence of consciousness of guilt. In that context, his Honour said that, in his view, there was “no role for the consciousness of guilt”. Although the prosecutor argued as he did earlier, namely, that the Crown was entitled to put to the jury that they could use the evidence of the applicant’s lies and of his deceptive conduct on the question of his credibility as well as consciousness of guilt, his Honour ruled that evidence of the applicant’s lies could properly go to his credibility, but not to his consciousness of guilt. His Honour said that consciousness of guilt was appropriate “at a different time but not appropriate now in the context of the trial”. His Honour meant, I think, that at the time when the applicant claimed that he had no involvement at all in the shooting, consciousness of guilt may have been relevant, but since his case before the jury was that he shot the deceased accidentally and admitted having engaged in the deceptive conduct and told lies to the police, it was inappropriate to rely on that evidence going to consciousness of guilt.

In my view, however, the evidence of the applicant’s relevant behaviour was cogent evidence going to his realisation that disclosure by him of the truth might implicate him in the offence. The limited admissions as to the shooting and his deceitful behaviour did not render evidence of that conduct so lacking in probative value as to make it an inappropriate basis from which consciousness of guilt could be inferred. It is true that the admissions might have been relevant to the question whether the inference should be drawn, particularly if one were also to take into account his explanations for the deceitful conduct, but in my view, the admissions did not relevantly diminish the probative value of that evidence.

As was the case when he cross-examined the applicant, the prosecutor did not, in terms, submit in his final address that the applicant’s relevant conduct demonstrated consciousness of guilt, but it is clear enough that the effect of his speech was to invite the jury so to reason. Although there are passages in the prosecutor’s address where he attacks the applicant’s credit, submitting that the jury should not believe his explanation as to the circumstances of the shooting because he was an “unmitigated liar”, he went well beyond merely inviting the jury to reject the applicant’s evidence because of his deceitful conduct and lies. The thrust of his address on the issue of lies was to suggest that the applicant’s relevant behaviour was motivated by his desire to hide the truth because he knew that, if he told it to the police, he would be effectively admitting to having shot the deceased deliberately with the necessary intent. He told the jury, for example, that the first lie was constituted by the applicant concealing the gun because “you may well think .. if the shotgun was still in the kitchen at the time those .. police officers got there ... things may well have been different”. He went on to say that, “[i]f the shooting was as accidental as he claimed, why get rid of the gun, why not wait for the police to get there and say that it was an accident ...”. In other parts of his address, the prosecutor invited the jury to consider why the applicant had told the lies. This too was, or could have been taken as, an invitation to the jury to treat the lies (as well as the deceptive conduct) as having been pursued out of a consciousness of guilt. In large part, the gist of what the prosecutor told the jury in his final address was that the applicant engaged in the conduct in question because he sought to “cover up” the true facts. Towards the end of his address, he said this:

“If, in fact, it was an accident, if there was any suggestion it was an accident, that gun would have been there when the police first arrived at the scene; there would have been no reason to get rid of it. There would have been no reason to tell lies about it; there would have been no reason to persist in those lies on each occasion he dealt with the police. He was hiding, he was telling lies about it, and that means you look at those lies against what in fact he has told you here.”

It seems to me, therefore, that in his final address (and during his cross-examination of the applicant) the prosecutor invited, or could have been understood as having invited, the jury to reason that the evidence of the applicant’s deceptive conduct and lies was evidence of his murderous intent. In those circumstances, and in view of the inherent believability of what the prosecutor was suggesting to the jury in that regard, there was a real risk that they would use the applicant’s relevant conduct as probative of his guilt.

But it would be productive of injustice to the applicant 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. As the applicant effectively said in his evidence, his deceit of the police was primarily brought about by his belief that they would not accept his account of the events and, like the police in North Vietnam who arrested his father, would take him away and deny him the opportunity of fulfilling his obligation to bury the deceased in accordance with Vietnamese custom. In the circumstances, therefore, an Edwards-type direction was called for, with the full authority of his Honour’s judicial office, in terms summarised by the President in his judgment [16].
[16]At [20].

In Edwards v. R.[17] Deane, Dawson and Gaudron, JJ. said[18] that where the Crown relies on lies as evidence of consciousness of guilt:

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

[17](1993) 178 C.L.R. 193.

[18]At 211.

Although the majority of the High Court in Zoneff v. R.[19] said[20] that, as a general rule, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt in the sense that it was told because the accused knew that the truth would implicate him in the commission of the offence and if, in fact, the lie in question is capable of bearing that character, their Honours also recognised that there may be cases in which the risk of misunderstanding on the part of the jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. Similarly, in Osland v. R.[21], Gaudron and Gummow, JJ. said[22]:

“Although the jury was not instructed that Mrs. Osland’s lies might be evidence of her consciousness of guilt, there was a real risk that it might reason that, because she lied about her husband’s disappearance, she must have known that he had been the victim of premeditated murder. Indeed, the prosecution suggested as much, inviting the jury to find that her conduct was not that ‘of a person who had killed somebody without lawful justification or excuse’”.

[19](2000) 74 A.L.J.R. 895.

[20]At [16].

[21](1998) 197 C.L.R. 316.

[22]At 333.

As was said by this Court in R. v. Le Broc[23] an Edwards-type direction is necessary, in particular circumstances, to prevent a miscarriage of justice. The miscarriage to which it is directed arises from the jury using a lie in an impermissible way. As the President noted in his judgment in this case[24] it is fundamental that a judge should tailor his or her directions to the circumstances of the case so as to ensure that the accused secures a fair trial according to law. Thus the question here is whether the direction given by the trial judge in respect of the evidence of the applicant’s relevant behaviour was sufficient to avoid the risk that the jury might use that evidence in an impermissible way.
[23][2000] VSCA 125 at [35] per Phillips, C.J., Batt, J.A. and Cummins, A.J.A.
[24]At [20].

So far as is relevant, his Honour told the jury that if they were satisfied that the applicant had lied when giving his account to the police or when giving his evidence before the jury, they could take that into account in assessing the credibility of his evidence. His Honour emphasised that the prosecutor did not say that the accused had lied and, therefore, he was guilty of the crime with which he was charged. His Honour also gave them a direction that they were not entitled to go through “the process of jumping from, we are satisfied that the accused has lied and then saying [if he lies] he must be guilty of the crime with which he is charged”. Moreover, he had correctly told the jury that, before they could draw any inference as to the existence of any element of the crime of which the applicant was charged, they have to be satisfied that such inference was the only inference which could be drawn from the relevant facts.

I respectfully agree with the President that, although the directions were adequate in so far as they dealt with the assessment of the credibility of the witnesses, they were insufficient to secure for the applicant a fair trial according to law; they did not sufficiently explain how the jury might use the fact that the applicant had engaged in deceptive conduct and had lied to the police. First, his Honour’s charge dealt only with the applicant’s lies. There was no reference, in terms, to his deceptive conduct. Thus, the jury were deprived of any guidance from the judge as to how they might properly use that evidence. Notwithstanding that the prosecutor described the applicant’s act of “getting rid of the shotgun” as “the first lie”, in my opinion, unlike the situation in R. v. Rice[25], the jury would not have regarded his Honour’s direction which dealt with the applicant’s lies as extending to his deceptive conduct; particularly, his concealing of the weapon before the arrival of the police. In his cross-examination of the applicant and in his final address to the jury, the prosecutor placed considerable emphasis on that conduct and, in the main, dealt with it separately from the admitted lies. In the circumstances, there was at least a risk that the jury would not have understood his Honour’s direction in relation to the applicant’s lies as extending to his conduct involving his concealment of his gun after the shooting. Secondly, although his Honour told the jury that they could properly use the applicant’s lies as going to his credit, he stopped short of saying that that was the only purpose for which they could use it. There was, therefore, a risk that the jury might have regarded that evidence as being relevant to the determination of the applicant’s credit as well as it being relevant to his consciousness of guilt. Next, his Honour did not tell the jury with the full weight of his judicial office that the applicant might have lied and engaged in the deceptive conduct for reasons which were consistent with his innocence. Given that the jury were likely to rely on that evidence in determining whether the applicant had the requisite intent, a direction which emphasised that there may be an alternative explanation for the applicant’s deceitful behaviour should have been given by his Honour. Failure to do that created, in my opinion a risk that the jury might engage in impermissible reasoning in relation to that evidence and, as I have said earlier, simply treated it as consciousness of guilt of the offence with which he was charged.
[25][1996] 2 V.R. 406 at 423.

In his charge the learned trial judge did not, in terms, refer to “consciousness of guilt” and, in my view, he was right in not doing so. The prosecutor had not used the term, nor did counsel for the applicant. In those circumstances, reference to it by his Honour may have created further confusion in the minds of the jury. But the Crown nevertheless relied on the applicant’s deceptive conduct and on his lies as evidence probative of guilt. It is trite that not every lie told by an accused amounts to evidence of guilt. A deliberate lie which relates to a material issue may amount to evidence against the accused if it is told because he or she perceives that the truth is inconsistent with his innocence. In those circumstances it may constitute an admission against interest. But equally, it may have been told for any number of other reasons which are consistent with innocence. It is important that in a case such as the present the jury give due consideration to all those matters. His Honour did not give the necessary direction in this case because he wrongly assumed that the jury would not use evidence of the applicant’s deceitful conduct and lies as evidence of consciousness of guilt. Failure to give such a direction produced, in my opinion, a real risk that the applicant did not receive a fair trial according to law and thus, a perceptible risk of a miscarriage of justice. The President has identified[26] facts that were present in this case which suggest improbability of murderous intent on the part of the applicant so that it was necessary that the trial judge should have brought to the jury’s attention in an unequivocal way the competing explanations for the applicant’s relevant behaviour.

[26]At [21].

I am conscious that the applicant’s experienced counsel did not take an exception to the charge and it might, therefore, be thought that he did not regard the direction as relevantly inadequate. But for the reasons given by the President[27] counsel’s abstention from taking an exception on this point is not determinative of whether failure to give such a direction might have resulted in a miscarriage of justice.
[27]At [22].

Accordingly, being of the view that there is a real risk that the applicant did not receive a fair trial according to law so that there is a perceptible risk of a miscarriage of justice, I would allow the application, treat the appeal as having been instituted instanter, allow the appeal, quash the conviction and order a re-trial.

SMITH, A.J.A.

Conviction and sentence

On 12 November 1999 the applicant, Nguyen, was found guilty of murdering Duc Doan Tran, the 14 year old son of his de facto wife, Ngoc Thi Trinh. He was sentenced to be imprisoned for 17 years and directed to serve 12 years imprisonment before becoming eligible for parole.

The Crown case at the trial

The Crown had alleged that on 27 June 1998, at approximately midnight, Nguyen shot the deceased and that death followed not long afterwards. The Crown put its case on the charge of murder in the alternative, alleging that the gun was fired with an intent to kill or with intent to cause really serious injury.

The Crown case may be summarised as follows. On the evening of 27 June, 1998, the applicant had visited friends and consumed more than half a bottle of whisky. The evidence was, however, that he appeared normal when he left the company of those friends and on his arrival at his home. He called in on his brother on the way home to borrow money but his brother declined to lend him money. He arrived home shortly before midnight. He asked the deceased, who was visiting, to go out and buy him cigarettes. The deceased declined and the applicant himself went out and bought them. When he returned, he did not join the other members of the family, including his de facto wife, who were in the lounge room but went instead into the adjoining kitchen. He took with him a double barrelled 12 gauge shotgun which he had retrieved from behind the garden shed. He had not been in the kitchen long when the deceased came into the kitchen and the gun was fired. The deceased was hit in the right chest just below the right shoulder. The Crown case was that the muzzle of the shotgun was approximately 1.5 metres away from the deceased when the shot was fired and the trajectory of the bullet was consistent with the gun being at approximately a 90 degree angle to the deceased when it was fired.

The Crown alleged that after firing the shotgun, the prisoner left the house taking the gun with him. He hid the shotgun and then returned to the kitchen. He later disposed of the gun. That night, and for some time afterwards, he maintained he was not in the kitchen when the shot was fired and that it must have been an intruder who fired a gun.

The Crown also alleged that when the police came and sought information they were misled by Ngoc Thi Trinh who also initially supported the applicant's intruder scenario. Three days after the event, however, Ngoc Thi Trinh spoke to the police and changed her account. She agreed to co-operate with the police to question the prisoner about the incident after the police had had a listening device installed in the home. In the recorded conversation with Ngoc Thi Trinh, the applicant acknowledged shooting the deceased but maintained that the shooting was an accident and that he had had good relations with the deceased. Shortly afterwards, he was re-interviewed by the police but, he again denied involvement and put forward the intruder explanation. Ultimately, however, he acknowledged that he was involved in the shooting but maintained it was an accident and that was the explanation he gave at the trial. The Crown adduced some evidence suggesting that there may have been problems in the relationship between the deceased and the applicant and may have been issues between them on the night in question, but it may be said that a motive to kill the deceased was not established.

Grounds of appeal against conviction

By notice of application for leave to appeal against conviction dated 17 December 1999 the appellant raised the following grounds of appeal.

"1.The conviction herein is unsafe and unsatisfactory in that the evidence did not support the conviction for murder.
i.The prosecution case was based on a conversation between the Applicant and his de facto wife which was recorded by a listening device installed by the police. This conversation contained many accusations against the Applicant which were not adopted by him. These accusations were not supported by the prosecution by calling the speaker.
ii.The accusations contained in the said conversations were refuted by Ngoc Thi Trinh when she was called by the defence.
iii.There was no evidence of the Applicant having any motive to kill or injure the deceased.
iv.Save for the circumstances of the shooting and the disposal of the weapon, both of which are equivocal, there was no evidence to support the verdict of murder.

2.The Learned Trial Judge erred in that he did not direct the jury to take into account the cultural and environmental circumstances of the Applicant when considering the evidence of the Applicant and the evidence called on his behalf:
i.The Applicant is a poorly educated immigrant from the North of Vietnam.
ii.He grew up in a society in which police do not enjoy the same status as in Victoria.
iii.The Applicant is the son of a father who worked for the French Government before Vietnamese independence. His father was imprisoned and injured by North Vietnamese Police.
iv.In these circumstances, lies to the Police cannot have the same effect as lies told by an Australian born and raised person and the learned trial judge should have made a positive direction to the jury that they could not regard lies by the Applicant in the same way as those told by a person born and raised in Australia.”

By order of 17 November 2000, the applicant was given leave to add the following grounds of appeal.
"3.A miscarriage of justice resulted from the prosecutor's failure to call the witness Ngoc Thi Trinh.
4.The trial judge erred in his directions concerning lies, and in particular he erred:
(a)in failing to give a direction in accordance with Edwards v The Queen (1993) 178 CLR 193;
(b)in failing to direct the jury that there may be reasons for the telling of a lie other than those which might be thought to affect the applicant's credit, including panic, the desire to escape an unjust accusation, the desire to avoid a consequence extraneous to the offence, the desire to organize the deceased's burial according to ritual, and cultural and personal factors that led to the applicant's distrust of police

5.The trial judge erred in his directions concerning the drawing of inferences, and in particular he erred in directing the jury that "[i]f there was another inference or other inference as reasonably open on the facts as you found them, you should not draw the inference in a manner adverse to the accused". (Emphasis added.)
6.The trial judge erred in his directions concerning motive, and in particular he erred:
(a)in failing to direct the jury that they must be satisfied beyond reasonable doubt of motive before relying on such evidence in proof of the charge;
(b)in failing to stress to the jury the particular importance of any failure by the prosecution to prove a motive in the circumstances of this case.

7.The trial judge erred in his directions concerning manslaughter, and in particular he erred:
(a)in directing (in effect) that, for the purposes of manslaughter by unlawful and dangerous act, the element of unlawfulness could be established only if the applicant was 'carrying a gun while under the influence of intoxicating liquor';
(b)in failing to direct that, for the purposes of manslaughter by criminal negligence, the prosecution must show that the act which caused death was done by the applicant consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment;
(c)in his directions concerning the identification of the voluntary act which caused death and the distinction between murder and manslaughter on that point.

8.An aggregate of errors caused the trial to miscarry."

I propose to consider the grounds of appeal in the order in which they were presented in the applicant's submissions at the hearing of the appeal.

Prosecution's failure to call Ngoc Thi Trinh (grounds 3 and 1 (i), (ii) )

On the first day of the trial, the prosecutor indicated that he had not made up his mind as to whether to call the de facto wife of the applicant, Ngoc Thi Trinh. The following day she gave evidence in a voire dire held to determine the admissibility of the recorded conversation. Following the voire dire the prosecutor announced that he would not be calling her as a witness in the trial. Counsel for the applicant indicated that he disagreed with that course. On the following morning, the prosecutor confirmed his decision saying that the Crown took the view that "she is not a witness of truth and accuracy". He gave reasons for that opinion. The prosecutor indicated also that he would not call her for the purpose of making her available for cross-examination. The learned trial judge discussed the issue with prosecuting counsel and counsel for the applicant made submissions as to why the prosecutor should re-consider his decision. The prosecutor, however, did not change his decision.

In support of his case on this ground, counsel for the applicant submitted that the evidence of Ngoc Thi Trinh was essential to the unfolding of the Crown case. She was present in the house when her son was shot. She witnessed the applicant's behaviour leading up to the shooting and immediately following it. In addition, acting under police direction, she engaged the applicant in conversation about the incident knowing that the police were recording it using a listening device. Much of that conversation involved her making accusations about the incident and expressing views about it and about the relationship between the applicant and the deceased. In many instances those observations and accusations were either rejected or not adopted by the applicant. From the recording it is also clear that at different times the applicant was demonstrating how he had been holding the gun at the relevant time. Counsel for the applicant, in stressing the importance of the witness to the unfolding of events, noted that the prosecutor had also indicated that he did not intend to call the sister of Ngoc Thi Trinh who had gone with her to the police. The defence case was that Ngoc Thi Trinh had been pressured by her sister, and other family members, to accuse the applicant. Counsel for the applicant submitted that the reality was that it could not be said, as is sometimes the case, that she was one of many witnesses in the matter. She was the only witness involved in the recorded conversation other than the applicant. The only other witness to the circumstances surrounding the shooting was her daughter, Amena Thu Thi Trinh, who was a Crown witness.

Because of her significance as a witness, it was said that the prosecutor had erred in his decision not to call her and that the failure by the Crown to call her had resulted in a miscarriage of justice[28].
[28]"Apostilides v The Queen" (1984) 154 CLR 563, 575

The Crown submitted, in response, that the prosecutor did not err in his decision and that the failure of the Crown to call the witness did not result in a miscarriage of justice. Counsel argued that she was a witness who had changed her story both dramatically and deliberately. He pointed to the changes that occurred in the statements made by Ngoc Thi Trinh to the police prior to the trial and the further changes that occurred when she gave evidence in the voire dire at the commencement of the trial. Further, it was put that there was clear evidence that she was in fear of the applicant.

As to the changes to her accounts, she had originally given the police a statement which supported the intruder scenario. In her second statement of 1 July 1998, however, she said that within seconds of the deceased going into the kitchen she heard a loud bang like a firecracker and then heard a second noise like somebody falling down. She went into the kitchen and saw the applicant was wrapping something in a black rubbish bag and that her son was lying on the floor in front of the fridge. The applicant was squatting 40 centimetres away from her son who said to her in a clear voice "father shot me dead". In the voire dire at the trial, however, she said she went into the kitchen where she saw her husband with a shotgun between his legs and saw her son standing and stooping over him. He then slowly fell to the ground. In addition, in her statement of 1 July 1998 she described the applicant as opening the back door but not going out the back door and carrying the item he had wrapped up in the plastic bag with him out the front door. At the voire dire she described him carrying the shotgun wrapped up in a white jacket or t-shirt that he used to clean the shotgun and how that, when she went in to the kitchen, she saw him with the gun and the white shirt. It was put that she had thus told significantly different stories of the events on three occasions and that the prosecutor was justified in not calling her because she had demonstrated that she was not an honest witness and that the interests of justice required that the Crown be able to cross-examine her if she gave evidence[29].
[29]Richardson v The Queen (1974) 131 CLR 116, at 119

As to her fear of the applicant, attention was drawn to her statement to the police made on 1 July 1998, the second statement, in which she said that she had not told the police everything because she was scared of the applicant. She gave an account of him also threatening to kill her if she did not tell the police when they arrived, on the night of the shooting, that the back door was open when she went into the kitchen.

Further, on the issue of miscarriage of justice, the Crown argued that it was not a situation where the applicant would be disadvantaged by not being able to cross-examine Ngoc Thi Trinh because she was in the applicant's camp. It was put that defence counsel was able to elicit what he wanted from the witness through evidence in chief and did not need cross-examination for that purpose.

I am satisfied that it has not been demonstrated that the prosecutor erred in making his decision. The matters referred to by the Crown amply supported that decision. I am also satisfied that no miscarriage of justice occurred. In particular, I am satisfied that there was no relevant unfairness. Counsel for the applicant was invited to identify areas of evidence where the applicant was disadvantaged by not being able to cross-examine Ngoc Thi Trinh but none were identified.

Lies – ruling and charge (grounds 4 and 2)

The applicant submitted that the learned trial judge erred in ruling that the evidence of lies as to the intruder scenario and the other post-event conduct of hiding and disposing of the gun could not be used to infer a consciousness of guilt. Counsel also submitted that his Honour should have directed the jury in accordance with Edwards v The Queen[30]. Alternatively, he submitted that, in any event, a detailed statement was required from the judge about alternative reasons for lying and for the applicant behaving as he did after the shooting including reasons such as panic, the desire to escape an unjust accusation, the desire to avoid a consequence extraneous to the offence, the desire (as a member of the Vietnamese family) to organise the deceased's burial according to traditional ritual and the cultural and personal factors that led the applicant to distrust the police.
[30](1993) 178 CLR 193

I turn first to the challenge to his Honour's ruling. In considering this issue it is necessary to trace the discussion that occurred at the trial about the use to be made of the evidence of lies and the disposal of the gun.

During his no-case submission, counsel for the applicant expressed concern about whether the Crown was going to be relying on what counsel called "false denials". Counsel submitted that the matters on which the Crown might rely were essentially ambiguous. He said there was:

"the clearest consciousness of guilt exhibited that he did something or was responsible for something. The problem for the Crown is what?"

His Honour, in the course of his discussion with counsel for the applicant, commented[31]:
"I treat this as not being a consciousness of guilt case, anyway, on the basis that the issue is one that goes to the state of mind, not to the question of perpetrator or no perpetrator where consciousness of guilt clearly does have a role to play."

Prosecuting counsel said that the Crown relied on what it alleged to be deliberate lies told to the police on two different occasions in lying about the intruder scenario. The learned trial judge responded saying that he had difficulty in relation to the deliberate lies being used as evidence of consciousness of guilt where there was a distinction to be made between the specific intent required for murder and the non-specific intent required for manslaughter. His Honour said that the credibility of the accused was an issue in that he had given different statements at different times and that what he said at different times may be an issue. In particular, they could be used by the jury in deciding whether to accept his statement that what occurred was an accident. His Honour went on to say that the conduct of removing and secreting the gun or concealing the gun could be an example of behaviour indicating consciousness of guilt but again commented on the difficulty, as he saw it, as to whether that behaviour was indicative of consciousness of guilt of murder rather than some other matter. Counsel for the prosecution argued strongly that the hiding of the gun and the false story were facts the jury were entitled to take into account and revealed a consciousness of guilt that he had deliberately shot the deceased and argued that it should be open to the jury to consider that together with the other evidence in determining whether it was satisfied beyond reasonable doubt that the applicant had murdered the deceased. There was reference to recent authority.[32] His Honour took the view that those authorities did not compel him to permit the Crown to use the conduct and alleged lies as evidence of consciousness of guilt.

[31](473-4)

[32]Notably R v Rice (1996) 2 VR 406 and an unreported Court of Appeal decision of R v Kim (8 April 1998)

It should be noted that while counsel for the applicant raised the issue he did not join in the discussion as to what should be the result, save and except that he maintained his submission that there was no case to answer.

The matter was raised again by his Honour at the end of the defence case and prior to addresses[33]. Prosecuting counsel submitted that the Crown was entitled to a consciousness of guilt direction because the jury was entitled to use the evidence of the two false accounts and the handling of the gun as evidence of consciousness of guilt as well as going to credibility. His Honour again queried how they could go to consciousness of guilt in relation to intention or voluntariness as distinct from whether he was the perpetrator. Counsel submitted that it was open because the applicant was endeavouring by those lies to totally absolve himself from any involvement whatsoever and that went to consciousness of guilt. His Honour noted that it seemed to him that now that the applicant had acknowledged that he had been holding the gun when it discharged the alleged lies were not material on a consciousness of guilt reasoning basis to the issues that remained. His Honour indicated that if counsel were to attempt to rely on a consciousness of guilt argument he would be directing the jury that it was inappropriate that it be raised in that way, that it could be used for credibility but not to establish a consciousness of guilt where the only issues left were whether the act was voluntary and whether there was a specific intent.
[33]714-716

[53]Gleeson, C.J., Gaudron, Gummow and Callinan, J.J.

One could argue about whether the learned trial judge's charge in this case was stronger or weaker than the suggested charge in Zoneff but, I am satisfied that he said more than enough to ensure the accused was not prejudiced by the jury inferring guilt from the fact of lies. His Honour stated that the jury must not conclude that if the accused had lied that he must be guilty, a statement made simply and clearly and made twice. In doing so, he directly addressed the major objective of the Edwards' direction.

The issue remains, however, whether the learned trial judge should have given other directions in line with the Edwards' direction[54] and, if he did not, whether the trial miscarried.
[54]namely those in sub-pars. 39(c) and (d) above

The third requirement is one way the High Court suggests that the jury should be instructed to guard against the danger that the jury may leap to the conclusion of guilt from the fact of a lie. It addresses the drawing of inferences to a limited extent in that it purports to define a permissible inferential reasoning process but, in terms, is appropriate only where "consciousness of guilt" is open as a finding. If given in the present case, it would have encouraged impermissible reasoning. It was not included in the charge but the charge dealt directly with the forbidden reasoning process. The issue then to be considered is whether his Honour adequately directed the jury on the drawing of inferences from the lies and other post-event conduct.

After making the statement referred to above[55] of a general description affecting the drawing of inferences of intention generally, his Honour went on to say:
[55]827 of the transcript, para 34 above.

"My next point is that before you draw an inference in relation to the subject of intention which is adverse to the accused you must be careful. You must be satisfied that there is no other inference reasonably open on the evidence than that the accused had the intention which is required for murder."

These directions were additional to directions given to the jury earlier that, before they could draw an inference as to the existence of an element of a crime charged, (so far as relevant - voluntariness and intent) they must be satisfied as to the facts on which they intended to base the inference and must also be satisfied that the inference was the only reasonable inference to be drawn from those facts[56]. They were further directed that:
". . .you must not draw an inference that an accused person is guilty unless it is the only inference that is reasonable in the circumstances. That means, that you must be satisfied that the facts upon which the inference is based have been proved beyond reasonable doubt and that the only reasonable inference that can be drawn from those facts is that of guilt."

The charge continued in the usual way explaining how these propositions followed from the fact that the Crown had to prove its case beyond reasonable doubt. In dealing with the issue of intention and the drawing of inferences as to intention referred to above, his Honour expressly referred back to the general directions he had given on the drawing of inferences[57].

[56]822

[57]see 827

The learned trial judge did not specifically relate the directions on inferences to the evidence of the intruder scenario lies and the hiding and disposal of the gun. In my view this should have been done.

It is true that the prosecution had treated the conduct after the event as being part of the lies of the applicant and the judge had instructed the jury that it could not reason from the mere making of such lies to guilt. In addition, his charge went on to make it clear to the jury that, before it could draw an inference as to intent adverse to the accused that inference had to be established beyond reasonable doubt. In addition, I note that no exception was taken by experienced counsel. In particular, he expressed no concern about whether the jury would have included the handling of the gun in the lies referred to by the judge.

The evidence of the post-event conduct, however, was the critical evidence in the case. The Crown was relying heavily on it to prove that the shooting was deliberate and was, therefore, voluntary. It was also relying on it, in conjunction with other evidence, to persuade the jury that the accused had the requisite intent for murder.

In my view, there were dangers for the accused in not having appropriate directions tailored to deal with this evidence because the jury might well assume, that, if they accepted that the conduct established that the accused knew that he had deliberately fired the gun, intent to kill necessarily followed. Strictly, a relevant direction about inferences of intent would, I suggest, have included in substance the following:-

(a)The Crown argued that the post-event conduct gave rise to the inference that the accused knew that the shooting was deliberate because the post-event conduct would not have occurred if the shooting was an accident.
(b)The Crown also argued that if you are satisfied that that is the explanation for the post-event conduct, you should then infer in light of all the evidence that the accused fired the gun with an intent to kill or cause really serious injury.
(c)The inference of such intent does not inevitably follow because the accused, if he deliberately fired the gun, may have intended other consequences.
(d)Reference could then be made to the usual directions about inferring intent.

It would also have been desirable to emphasise that it would be wrong to infer guilt from the mere fact of the hiding and disposal of the gun; for the jury may not have appreciated that the similar comment on lies also applied to that other conduct.

Whether such detailed directions were necessary to secure a fair trial is, however, another matter. If it were the only issue, the case would be one, in my view, for the application of the proviso. No exception was taken to the charge on inferences and, in the circumstances of this case, if the jury rejected the innocent explanations of the accused, conviction on the charge of murder was inevitable. What was, therefore, critical was the jury's assessment of alternative innocent explanations for the post-event conduct – the fourth point in the Edwards' charge. In addition, the explanation of the post-event conduct was important because of its impact on the credibility of the accused and thus the jury assessment of his evidence. I turn, therefore, to the fourth Edwards' direction.

Counsel for the applicant submitted that the learned trial judge should have given judicial support to the various explanations that could be offered for the lies.

His Honour did not give support for the explanations for the alleged lies. His Honour did, however, repeat the arguments of counsel for the accused in his summary[58]. Counsel for the accused had said to the jury that for the accused the gun was an evil thing, that the lies to the police arose from a desire to be involved in the Vietnamese burial of his son, that to hide evidence does not point to guilt, that people can feel guilty about accidents and that people can panic even though not at fault and counsel had pointed to the accused's fear of the police derived from his experiences in Vietnam[59]. In not giving judicial support, his Honour did not address the fourth issue raised in Edwards.[60]
[58]868
[59]800-1
[60]211 citing e.g., Lonergan v The Queen (1963) TAS SR 158 at 166 Broadhurst v The Queen [1964] AC 451, at 457

Kirby, J. in his judgment in Zoneff v The Queen[61] emphasised the importance of ensuring that the jury does not think that an accused is lying and must, therefore, be guilty and the significance of emphasising that point by referring to the fact that there may be reasons other than guilt to explain the untruthfulness. He quoted the often quoted passage from Broadhurst v The Queen [1964] AC 441 at 457. He commented on the fact that:
[61]at 907

"A warning of the Broadhurst kind, given with judicial authority, might be a healthy corrective to this kind of reasoning."[62]

His Honour also commented generally on the overriding principle to be applied in reviewing judicial directions to a jury when he said[63]:
"The trial judge must ensure, to the best of his or her ability that the accused secures a fair trial, held in accordance with law. This is why it is always important to consider the judicial directions complained about in the context of the issues that were fought at the trial, the addresses that have preceded it and the request (if any) for re-direction. There could be few developments more destructive to the character of a jury trial, as it has been conducted for centuries, and a minute and pernickety attention to the words of the judge's charge, divorced from their context and express purposes. Legal accuracy is demanded. But in most cases particular verbal formula are not."

It must also be borne in mind that the Edwards' direction does not have to be slavishly followed. At times, to do so may in fact work to the disadvantage of an accused[64].

[62]ibid

[63]at 906

[64]see The Queen v Totivan & Dale (unreported) Court of Appeal 15 August 1996

The situation was that the jury had been clearly directed on the importance of avoiding the dangerous fallacy of reasoning from lies directly to guilt and had been appropriately directed in general terms on the drawing inferences as to intention from statements and conduct. It had had the benefit of submissions from both counsel on matters they should take into account in determining what inferences to draw, if any, from the lies and other post-event conduct. In particular, from the accused's counsel they had had a number of reasons put forward to them as to why no inferences adverse to the accused should be drawn.

That having been said, I am concerned about two aspects. The first is that in his direct warning to the jury about misusing lies, his Honour did not expressly direct the jury that what he had said had equal force for the evidence of the hiding and concealing of the gun. It must be remembered that while Edwards' case dealt with lies, as such, the same dangers arise with respect to the other post-event conduct in this case. If that were the only issue, however, it would probably not warrant intervention by the Court, particularly in view of the absence of any exception by counsel. The other concern is more significant.

The evidence of the lies and the handling of the gun were central to the Crown case and had received considerable emphasis from prosecuting counsel, both in his cross-examination of the accused and in his address to the jury. In that situation, the accused would normally be entitled to expect the trial judge to explain to the jury, at the very least, the fact of life that people can lie and dispose of guns in cases like the present for innocent reasons and so give judicial support to the arguments advanced on his behalf.

Here it is necessary to consider again the fact that at no stage did experienced counsel for the applicant complain about the charge as to the alleged "lies" and, in particular, did not seek further directions from the learned trial judge giving judicial support to the arguments advanced to explain the "lies". He also did not seek such a direction before the charge.

An appellate court should, in my view, be very reluctant to interfere in those circumstances. The failure of counsel for the accused to seek further directions from the trial judge suggests that he thought that what he had said was enough and that the way the issue had been handled was in the best interests of his client[65]. That is an arguable view in relation to the first three aspects of the Edwards' direction. I am unable, however, to see how it was anything but a serious disadvantage to the applicant not to have the fourth aspect addressed. Because of the significance of the evidence to both the issues in the case and the credibility of the accused, the emphasis and vigour of the prosecution attack, and the dangers of misuse of the evidence, it was necessary that judicial support be given to ensure proper consideration of alternative explanations for the post-event conduct. In my view the situation was one where the lack of such support went to the root of the proceedings[66]. I am obliged, therefore, to hold that there was a miscarriage of justice notwithstanding the acceptance of the directions by counsel for the accused at the trial.
[65]Quartermaine v R (1980) 143 CLR 595, 612 and generally R v Gallagher [1998] 2 VR 621 and Crampton v The Queen [2000] HCA 60
[66]Wilde v The Queen (1988) 164 CLR 365

It may be that "consciousness of guilt" reasoning having been excluded, minds were not directed to the fourth aspect of the Edwards' direction – perhaps another reason to avoid the phrase and to focus instead on the substance of the inferences sought to be raised and the dangers in the process of drawing these inferences.

Charge on inferences (ground 5)

Counsel for the applicant pointed to a sentence in the learned trial judge's direction on inferences which reads:

"If there was another inference or other inference as reasonably open on the facts as you found them, you should not draw the inference in a manner adverse to the accused."

Counsel for the applicant submitted that it was an error to suggest that an accused is entitled to an acquittal when two inferences are said to be open one of which is consistent with innocence and the other consistent with guilt but only if they were equally open. Counsel argued that the accused must be acquitted if there is a reasonable hypothesis open on the facts consistent with innocence even if it is not equal in its force to inferences pointing to guilt[67].

[67]Knight v The Queen [1992] 175 CLR 495, 582 – 3

The argument advanced for the applicant assumes an interpretation of the impugned direction, namely, that an accused is entitled to an acquittal only where the inferences consistent with innocence and guilt are equally open. In my view, his Honour's direction should not be so interpreted. His Honour simply explained what the consequence would be where the competing inferences were equal. Accordingly, no error is shown.

If there was an error, it was insignificant and was addressed by passages preceding and following the particular sentence. The direction in question was preceded by the following:

"In a criminal trial such as this one, because of the requirement that the prosecution must prove the case against the accused beyond reasonable doubt, you must be careful about the inferences you draw. In particular, before you could draw an inference as to the existence as to any of the elements of the crime charged, you must be satisfied as to the facts upon which you intend to base the inference. You must be satisfied that the inference is the only reasonable inference to be drawn from those facts."

Immediately following the direction in question, the learned trial judge stated the following:
"Above all you must not draw an inference that an accused person is guilty unless it is the only inference that is reasonably open in the circumstances. That means that, you must be satisfied of the facts upon which the inference is based or been proved beyond reasonable doubt and that the only reasonable inference that can be drawn from those facts is that of guilt."

Later in the charge [68] the learned trial judge stated
"My next point is that before you draw an inference in relation to the subject of intention which is adverse to the accused you must be careful. You must be satisfied that there is no other inference reasonably open on the evidence and the accused had the intention which is required for murder."

[68]27

In these passages, the learned trial judge addressed any possible misunderstanding caused by the impugned passage. Thus it may be said that his Honour correctly stated the law on inferences in giving his directions to the jury on inferences. It is not surprising that no exception was taken by experienced counsel for the accused.

Charge concerning motive (ground 6; also ground 1 (iii) )

Counsel for the applicant submitted that the prosecutor relied on motive and the trial judge directed the jury on the topic. Counsel for the applicant submitted that the jury should have been directed that they had to be satisfied beyond reasonable doubt as to the alleged motive before they could rely on the evidence relating to motive in proof of the charge.[69] Counsel also submitted for the applicant that the judge should have stressed to the jury the importance of any failure to prove motive. In fact the judge should have gone further, it is said, and taken the issue from the jury on the basis that there was no sufficient evidence of motive.
[69]Authorities cited in support of this proposition was Penny v The Queen (1998) 72 ALJR 1316 at para 26), and it was contrasted with R v Kotzmann [1999] 2 VR 123 and R v Koeleman [2000] VSCA 141 at 26-28.

The reality of the trial was that the Crown did not advance motive as a significant part of its case. Further, Penny v The Queen[70] is not authority for the key proposition relied on by the applicant. It did not purport to alter the law as explained in Shepherd v R (1990) 120 CLR 573[71]. At its highest for the applicant it might have been said, not that the jury had to be satisfied beyond reasonable doubt of motive before it could rely on such evidence in proof of the charge, but rather that, if the jury found that the drawing of an inference of motive was significant for its decision, then motive had to be proved beyond reasonable doubt. The fact was that the judge gave a general direction about inferences[72] which emphasised this aspect. Again, significantly, applicant's counsel at the trial did not take exception to the learned trial judge's charge and was content to address on the matter relying on the lack of evidence of motive to support the defence case. Counsel obviously wanted the issue before the jury and did not think that the matter required further direction. There was no miscarriage of justice.

Directions on manslaughter (ground 7)

[70]above

[71]see R v Kotzman and R v Koeleman, above

[72]823

Manslaughter was left to the jury on two bases - death resulting from an unlawful and dangerous act and death resulting from criminal negligence. As a result there are several parts to the applicant's submission on this ground. Counsel submitted that a number of errors were made in his Honour's charge in dealing with manslaughter.

(a) The charge as to unlawful and dangerous act manslaughter
It should be noted, as was conceded by counsel for the applicant, that the applicant was not arguing that the judge erred in putting unlawful and dangerous act manslaughter to the jury on the basis of carrying a gun while under the influence of intoxicating liquor.
Counsel for the applicant submitted that the learned trial judge erred because the only basis upon which unlawfulness was put to the jury was that death resulted from the applicant carrying a gun while under the influence of intoxicating liquor contrary to s. 142 of the FirearmsAct[73]. Counsel submitted that there were other bases open; for example using a firearm in a dangerous manner[74] or unlawful assault[75]. Counsel suggested that the latter was open on the basis of the applicant's evidence that the deceased was staring at and close to the applicant when the gun was pointed in his direction. Counsel further submitted that limiting consideration to s 42 Firearms Act was significant because the evidence of intoxication may not have been sufficient to satisfy a jury beyond reasonable doubt that the applicant was "under the influence of intoxicating liquor". As a result the jury may have rejected manslaughter although it was open on other bases which were not put to it.

[73]834 – 6 and 832
[74]s. 127 of the Firearms Act
[75]Pemble v The Queen (1971) 124 CLR 107
In considering this submission it is significant that it was counsel for the accused who searched for and selected the way the issue of unlawfulness should be approached. The accused had a forensic choice to make[76] – how to have manslaughter left to the jury without reducing the chances of acquittal of both murder and manslaughter on the basis of reasonable doubt as to whether the shooting was deliberate. To include the other options opened the possibility of conviction on the manslaughter charge even though the jury had such a reasonable doubt.
[76]Re Ratten [1974] VR 201, 214; R v Arundell [1999] 2 VR 228, 249, 250
Having made that forensic choice, the applicant now wishes, with the benefit of hindsight, to suggest a different approach to a manslaughter direction and verdict. But he made that choice and has, therefore, not been deprived of a fair trial. It has not been demonstrated that the learned judge erred or that there was any miscarriage of justice. It must be borne in mind that the contest in the trial centred on whether the shooting was deliberate or accidental.
Another issue raised in this context was whether there was an inconsistency in leaving evidence of intoxication as being relevant to the mens rea and voluntariness required for murder (as occurred in the charge[77]), in respect of which the onus is on the Crown to prove those elements despite the evidence of intoxication, but at the same time leaving intoxication as an actual element of manslaughter to be proved by the Crown. As to this point, the problem posed would have remained even if manslaughter had been left on the additional bases as argued by the applicant.
[77]at 828 – 830

(b) Criminal negligence – standard of care
The applicant argued that the charge of manslaughter by criminal negligence was inadequate because it failed to state that the standard of care required by the law was one
"which involves such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment".

As a result it is said that the test left by the judge was easier for the Crown to meet and thus the difference between murder and manslaughter was made greater than it should have been in the circumstances. This is an interesting argument; usually an accused hoping for a manslaughter verdict would be grateful that the charge made conviction for manslaughter easier.
The passage quoted by the applicant is contained in Nydham v. R.[78]. The learned trial judge's charge followed the standard form of charge, one that has been given in manslaughter cases, at least since Nydham v R. I am satisfied that the critical concepts were covered in the learned judge's statement of the required standard of care and it was not necessary to direct the jury in terms of the above passage. Again, it is significant that no exception was taken to the charge on this aspect.
[78][1972] VR 430, at 445

(c) Voluntariness and identification of the act causing death
An issue of considerable debate at the trial was the question of the adequacy of the direction given on the question of the identification of the act or acts causing death which must be voluntary in the context of murder and of manslaughter. In particular, counsel sought a re-direction broadening the directions on the identification of the voluntary act causing death for the purposes of manslaughter by negligence.
As a result of these submissions by counsel, a redirection was given. That redirection was not simply accepted by counsel for the accused but strongly approved by him. He, having been told by his Honour what his Honour proposed to say to the jury, responded[79]
[79]887
"Then I am not just content with your Honour's words, I am humbled by them because they are a lot more complete than mine."

Counsel's approbation was correct.
It is true that at a later time[80] counsel for the accused sought a redirection following a question from the jury. As the learned trial judge pointed out, however, the question from the jury sought a restatement of the differences between manslaughter and murder with particular reference to intent and had not raised the issue with which counsel for the accused had been concerned and on which he had sought a redirection. Thus there was no need for a further direction.

In all the circumstances, I am not persuaded that there was any misdirection on the issues raised in relation to manslaughter. It is therefore unnecessary to consider the argument based on Gilbert v The Queen[81].
The verdict was unsafe and unsatisfactory (ground 1)

[80]899-901

[81](2000) 74 ALJR 676

For the applicant it was submitted that on the whole of the evidence a reasonable jury could not have excluded all hypotheses consistent with innocence[82]. In view of the conclusions I have reached on grounds 2 and 4, it is not necessary to consider this issue.

Aggregate of errors (Ground 8)

[82]M v The Queen (1994) 181 CLR 487

Finally counsel for the applicant submitted that even if the alleged errors considered individually did not give rise to a miscarriage of justice, in combination they did lead to the conclusion that there had been a miscarriage of justice[83]. In view of the conclusions I have reached on the other grounds it is unnecessary to consider this ground.

Conclusion

[83]R v Kotzmann [1999] 2 VR 123 – 157

For the foregoing reasons grounds 2 and 4 have been made out. The application for leave to appeal against conviction should be allowed. The appeal should be treated as having been instituted instanter and allowed. The conviction should be quashed and a re-trial ordered.

[2001] VSCA 1

27 February 2001