Supreme Court of Victoria Court of Appeal , S Eapcr 2024 0030 and Director of Public Prosecutions v Gregory Stuart Lynn

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2024 0030
DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
GREGORY STUART LYNN	Respondent

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JUDGES:	EMERTON P, TAYLOR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February and 5 March 2024
DATE OF JUDGMENT:	12 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 62[1]
JUDGMENT APPEALED FROM:	R v Lynn Ruling 5 - Full reasons (Croucher J)

[1]As this was an interlocutory appeal, the publication of this judgment was previously restricted until the conclusion of the respondent’s trial on 25 June 2024.

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CRIMINAL LAW – Interlocutory appeal – Respondent charged with two counts of murder – Circumstantial case – Respondent gives account of sequential accidental deaths – Bodies of deceased moved, hidden and ultimately burnt, crushed and scattered by respondent – Ruling that post-offence conduct can be used as evidence of incriminating conduct only as to unlawful killing – Whether prosecution can rely upon post-offence conduct as evidence of incriminating conduct as to murderous intent as well as unlawful killing – Leave to appeal granted – Interlocutory decision set aside.

Jury Directions Act 2015, ss 18, 19, 20, 21 and 22.

The Queen v Ciantar (2006) 16 VR 26 applied; The Queen v Baden-Clay (2016) 258 CLR 308; Butler v The Queen (2011) 34 VR 165; DPP v Zhuang (Ruling) [2014] VSC 276; DPP v Scriven (Ruling No. 4) [2015] VSC 220, considered.

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Counsel
Applicant:		Mr J Dickie with Ms K Hamill
Respondent:		Mr D Dann KC with Mr M McGrath
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Chris McLennan & Co

EMERTON P
TAYLOR JA
T FORREST JA:

Introduction and overview

The respondent is charged with the murders of Russell Hill and Carol Clay.
The Crown case is entirely circumstantial. Mr Hill and Mrs Clay were last seen on 20 March 2020 at a camp site in the remote wilderness of the Wonnangatta Valley in Victoria’s Alpine Region. The respondent was camped in the same area. A suite of evidence indicates that Mr Hill and Mrs Clay were killed violently at their campsite. The prosecution alleges that the respondent killed both deceased, and did so with murderous intent.
The defence case is that each deceased died accidentally. Mrs Clay was accidentally and fatally shot to the head as the respondent and Mr Hill struggled for control of a shotgun during a physical altercation. Mr Hill was subsequently accidentally and fatally stabbed with a knife during a second physical altercation.
The respondent neither called for help nor reported the deaths. Both in the immediate aftermath and over the next months the respondent took a number of steps to obliterate all evidence of the deaths and his association with them.
The respondent was arrested on 22 November 2021 and subsequently interviewed. On 24 November 2021 he gave police his account of the two accidental deaths, his resulting panic and the steps he took to cover up his involvement in them.
The trial judge ruled the record of interview inadmissible in the trial.[2]
[2]Ruling No. 2, R v Lynn (Rulings 1-4) (Croucher J).
Nonetheless, counsel for the respondent informed the judge that the 24 November 2021 account will be before the jury. Either the relevant portion of the record of interview will be led, by agreement, as part of the Crown case or the respondent will give evidence in accordance with it. (And, potentially, both of those things may occur.)
Pursuant to s 19(1) of the Jury Directions Act 2015 (‘JDA’) the prosecution gave notice of its intention to rely on certain post-offence conduct by the respondent as incriminating conduct. That conduct was identified as killing the second person shortly after killing the first as well as certain particulars of the multifaceted attempts to conceal any involvement in the events along with the destruction of the scene and bodily remains.
On 19 February 2024 the trial judge gave an ‘advisory ruling’[3] in which the second killing was found not to be reasonably capable of being viewed as evidence of incriminating conduct at all, and the remaining conduct was found to be reasonably capable of being used as evidence of a belief by the respondent that he had unlawfully killed the deceased but not of a belief that he had committed murder.
[3]R v Lynn (Ruling 5). The advisory ruling was written in a short, conclusionary manner absent detailed reasoning to allow its prompt delivery and to preserve the listed trial date. Without any criticism of the trial judge in adopting that course, this Court requested the trial judge to provide full reasons for his conclusions. The judge did so.
Following an application by the Crown, on 22 February 2024 the trial judge certified pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) that the decisions in the ruling are of sufficient importance to the trial to justify them being determined on an interlocutory appeal.
By Notice dated 23 February 2023 the Crown seeks leave to appeal against the interlocutory decision on the following grounds:
1.The learned trial judge erred in finding that the violent death of the second person in close proximity to the violent death of the first person was, on the basis of the evidence as a whole, not reasonably capable of being viewed by a jury as incriminating conduct with respect to the murder of the first person; and
2.The learned trial judge erred in finding that evidence of the respondent’s failure to notify anyone and his steps to contaminate the scene and to remove the bodies was, on the basis of the evidence as a whole, not reasonably capable of being viewed by a jury as incriminating conduct with respect to the murder of the deceased; and
3.The learned trial judge erred in finding that evidence of the respondent’s further steps to avoid detection by the authorities was, on the basis of the evidence as a whole, not reasonably capable of being viewed by a jury as incriminating conduct with respect to the murder of each of the deceased; and
4.The learned trial judge erred in finding that evidence of the respondent’s return to the scene of the bodies in May 2020 was, on the basis of the evidence as a whole, not reasonably capable of being viewed by a jury as incriminating conduct with respect to the murder of each of the deceased; and
5.The learned trial judge erred in finding that evidence of the respondent returning to the bodies of the deceased and burning, shattering and scattering their remains in November 2020 was, on the basis of the evidence as a whole, not reasonably capable of being viewed by a jury as incriminating conduct with respect to the murder of each of the deceased.
On 28 February 2024 the judge provided full reasons for his decisions (‘Reasons’).[4]
[4]R v Lynn Ruling 5 – Full reasons.
For the reasons that follow we would grant leave to appeal, set aside the interlocutory decision and order that except for paragraph (a) the Crown be permitted to rely upon the conduct identified in its Revised Notice of Evidence of Incriminating Conduct, as well as the conduct of the respondent in November 2020 in returning to the site of the bodies, burning them and shattering and scattering the remains, as evidence of incriminating conduct both as to manslaughter and murder.

Summary of prosecution case

It is convenient to summarise the prosecution case.
Russell Hill was 74 years of age at the time of his death. He was married and also had an ongoing relationship with Carol Clay. Mrs Clay was 73 years of age at the time of her death. She regularly accompanied Mr Hill on camping trips. Mr Hill was an experienced and regular camper. When camping, it was his habit to speak almost every night at 6 pm on his long-distance radio.
Neither Mr Hill nor Mrs Clay were licensed or known to have any experience or interest in firearms.
In September 2019 Mr Hill had acquired a mobile phone operated drone which had the capacity to record footage.
Between 11 and 13 March 2020 Mr Hill and Mrs Clay camped at King Billy Number 2 Campground in the Alpine National Park. There Mr Hill spoke with other campers about his enthusiasm for high-frequency radio and his drone. During a discussion about firearms, he said he was not a hunter and had a relative or friend who had been shot during a deer hunt.
In March 2020 the respondent was 53 years old and employed as a senior check captain pilot with Jetstar. He was a keen amateur sporting shooter and firearm enthusiast. He was licenced to possess firearms, including a shotgun. He held a current game licence, endorsed for deer stalking.
Licensed hunters are permitted to hunt deer across the Alpine National Park.
Absent a permit, the flying of drones in national parks is prohibited.

Bucks camp

On 16 March 2020 the respondent drove his Nissan Patrol wagon towing a box trailer from his suburban home to Howitt Plains in the Alpine National Park. He took camping gear and both a rifle and shotgun for hunting. He remained there until the morning of 18 March 2020. On that day he asked for directions into Wonnangatta Valley from a Parks Victoria ranger. At about 11.00 am the respondent met other Parks Victoria workers at a campground near Dry River Junction. He said he was a hunter and asked about camping spots. It was suggested he try Bucks Camp. Later that day the respondent was observed backing his car into the bush on the river at Bucks Camp.
On 19 March 2020 Mr Hill told his wife that he was going to Wonnangatta and would be gone for at least a week. Mr Hill collected Mrs Clay in his Landcruiser and together they travelled to Bucks Camp. The respondent was the only other person camped there. Mr Hill made his usual radio broadcast at 6.00 pm.
On the morning of the following day, 20 March 2020, Mr Hill and Mrs Clay were seen walking together. At about 5.00 pm a drone was observed flying in the vicinity. At 6.00 pm Mr Hill was on his radio. He signed off at about 6.40 pm.

Circumstances of the alleged murders

The prosecution case is that during the evening of 20 March 2020 the respondent murdered Mr Hill and Mrs Clay. The Revised Summary of Prosecution Opening is in the following terms:
The precise circumstances of the killings are not known. Nor is the motivation. The prosecution alleges that all the relevant circumstances, including the violent deaths of the two people in close proximity, point to Mr Hill and Mrs Clay each being killed deliberately and without lawful justification.
Given the later removal from the scene of Mr Hill’s drone and the mobile phones, it is likely there was a dispute regarding Mr Hill’s drone or vision captured on his drone. There might have been an argument or confrontation between the men.
It is not known how Mr Hill was killed. The prosecution alleges that Mr Hill was most likely killed first. In part this is because Mrs Clay is very unlikely to have provoked a violent confrontation involving a firearm or to have posed any threat to the respondent (other than having witnessed or been aware of Mr Hill’s violent death). If he had been alive, Mr Hill could also have readily called for assistance if he was aware that Mrs Clay had been shot.
Mrs Clay is alleged to have been shot in her head by the respondent. At the time she was shot, Mrs Clay is likely to have been crouched down between the tent and the Landcruiser, near the car’s canopy.[5]

Contamination and destruction of the alleged crime scene

[5]Revised Summary of Prosecution Opening, [40]–[43].

The prosecution case is that after the killings the respondent made considerable efforts to contaminate the scene, conceal evidence and distance himself from what happened.
The respondent moved the bodies, most likely placing them in his box trailer. He set fire to Mr Hill and Mrs Clay’s tent. He also burnt an area adjacent to the Landcruiser where there was likely to have been blood. The respondent removed cards from the wallets of each of Mr Hill and Mrs Clay, and likely took cash from at least one. He left the cards and wallets in the footwells of the Landcruiser’s cabin. He closed the awning to the Landcruiser’s canopy. He took the mobile phones of each deceased along with Mr Hill’s drone and the keys to the Landcruiser.
During the early hours of 21 March 2020 a camper near the junction of the Wonnangatta Track and Wonnangatta River was woken by the sound of a vehicle towing a trailer driving past. The road was closed and the camper could hear the effort involved in turning the vehicle around. The prosecution case is that the driver of that vehicle was the respondent.
The prosecution allege that the respondent disposed of the bodies in the wilderness near Union Spur Track. It was at a location to where the respondent could return.
At 9.47 am on 21 March 2020 Mr Hill’s mobile telephone reconnected to the network. At about 9.48 am the respondent’s Nissan patrol and towed trailer were captured in photographs on Automatic Number Plate Recognition (ANPR) cameras on the Great Alpine Road at Buckland’s Gap. The relevant data from Mr Hill’s phone shows that it was in the vicinity of those ANPR cameras at 9.48 am and that thereafter it was likely in a moving vehicle before becoming stationary at about 1.00 pm at a location on or adjacent to the Great Alpine Road. The prosecution allege that the respondent disposed of both mobile phones, the drone and the Landcruiser car keys at about that time.
At about 3.00 pm the respondent’s mobile phone connected to a cell tower in the vicinity of Mansfield. It was the first connection his phone number had made with the network since about 11.00 am on 18 March 2020. The following day, 22 March 2020, the respondent’s mobile phone made contact with a cell tower in the suburb in which he lived.
The respondent did not report the deaths of Mr Hill or Mrs Clay.

Dispossession of trailer

On 1 April 2020 the respondent placed an advertisement to sell his box trailer on Gumtree. The advertisement was removed by 3 April 2020. The trailer’s registration remained in the name of the respondent until it expired. The trailer has never been found.

Discovery of Bucks Camp scene

Between about 11.00 am on 21 March 2020 and the afternoon of 26 March 2020 several campers came across Mr Hill’s Landcruiser and a burnt campsite at Bucks Camp.
Mr Hill was reported missing to police by his wife on 26 March 2020. Two days later Mrs Clay was reported missing by a friend.
On 27 March 2020 local police drove into the Wonnangatta Valley to search for Mr Hill, but found neither him nor his campsite. Campers in the vicinity were asked to keep an eye out. One of them later discovered the Bucks Camp campsite. He provided police the GPS co-ordinates of the location.
On 28 March 2020 police officers arrived at Bucks Camp. There was no sign of Mr Hill or Mrs Clay. The Landcruiser’s cabin was locked but the rear canopy was unlocked. There was a wallet in each footwell of the cabin. Neither contained cash. Cards had been removed from and left near the wallets. The mobile telephones of Mr Hill and Mrs Clay were missing, as was Mr Hill’s drone. Upon later examination, the radio transceiver, in a bracket attached to the front centre console of the Landcruiser, was found to operate normally. Its use would have permitted communications with other amateur radio stations in Australasia and further afield.

Melbourne’s first lockdown

At 11.59 pm on 30 March 2020, Melbourne went into lockdown as a result of the COVID-19 pandemic. It lasted 43 days to 12 May 2020.

Respondent returns to bodies

Records of the respondent’s mobile telephone are consistent with him leaving his suburban home at about midnight on 12 May 2020, travelling to the Alpine Region and returning home at about 3.48 pm on 13 May 2020.
The prosecution case is that the respondent travelled to Union Spur Track where he had hidden the bodies.

Painting of Nissan Patrol

On 4 June 2020 the respondent painted his Nissan Patrol a different colour.

Respondent again returns to bodies

Between 18 and 19 November 2020 the respondent again returned to Union Spur Track where he burnt, crushed and dispersed the remains of Mr Hill and Mrs Clay.

Removal of awning from Nissan Patrol

On 7 November 2021 police released to the public an image of the respondent’s Nissan Patrol and trailer passing through the ANPR site on the Great Alpine Road on 21 March 2020. The image depicted a distinctive side-mounted awning on the Nissan. By the time of his arrest two weeks later, the awning had been removed.

Arrest and interview

On 22 November 2021 the respondent was arrested in the Alpine Region.
The segment of the record of interview that will be played, by agreement, as part of the Crown case is to the following effect:
•The respondent set up camp in the Wonnangatta Valley on 18 March 2020. Mr Hill and Mrs Clay set up camp near to him on the afternoon of 19 March 2020. That night was uneventful. He heard Mr Hill use his radio.
•On the morning of 20 March 2020 the respondent spoke with Mr Hill, who told him that he had a friend who had been killed hunting deer. He went hunting that day. As he returned to the camp that afternoon, he heard a buzzing sound and saw a drone above his head. He unloaded his rifle and saw Mr Hill controlling the drone. Knowing that drones are flying cameras, he thought for a while before deciding to find out what the ‘drone incident’ was about. He approached Mr Hill – unarmed – and asked why he was using the drone. Mr Hill said that he didn’t like deer hunters and had footage of the respondent hunting close to the camp which he was going to give to police. The respondent denied he had been hunting close to the camp. Mr Hill said he could say that the respondent had shot through the camp.
•After the exchange the respondent returned to his camp and ate dinner. He was ‘annoyed’. He turned up the stereo in his Nissan and, with the doors open, played loud music.
•Two bagged firearms were in the Nissan: the respondent’s rifle and a Barathrum Arms straight-pull shotgun. The ammunition for the shotgun was on the front seat. He had earlier ‘foolishly’ loaded the magazine.
•After a few hours he heard ‘rustling’. Looking up, he saw Mr Hill walking away from the Nissan with the Barathrum shotgun and magazine. The respondent approached and demanded the return of the weapon, which by then Mr Hill had loaded. Mr Hill said he was going to take it to the police before pulling the action back and firing a couple of rounds in the air. In fear and not wishing to move into the open, the respondent ran to the back of the Landcruiser and waited. He then saw the barrel of the shotgun appear over the bonnet. In an attempt to disarm Mr Hill, he jumped up and grabbed the shotgun on the barrel. He was facing Mr Hill. Mr Hill was facing away from the bonnet. They wrestled. Mr Hill would not let go of the firearm. It discharged. The bullet went through the lefthand rear view mirror and struck Mrs Clay to the head, killing her. Mrs Clay had been crouching down at the moment of impact.
•Mr Hill released the shotgun. The respondent took the weapon. He discharged the single remaining round into the air, placed the gun in its bag in the Nissan, turned the music off and shut the doors. As he turned around, Mr Hill advanced towards him with a knife in his right hand and a clenched left fist. Mr Hill swung first with his left fist and then with the knife. He was yelling ‘she’s dead’. The respondent grabbed at Mr Hill’s wrist. Mr Hill pushed the respondent backwards onto the ground. Mr Hill fell on top of him. The knife went into Mr Hill’s chest, right side of the sternum, blade lateral. They rolled over. Mr Hill crawled a short distance and stopped moving. The respondent said:
And then I thought, ‘What am I gunna do?’ I went over. Ms Clay was clearly dead. I came back. I checked for a pulse on Mr Hill. He was clearly dead. There was no pulse. And from here I panicked, and I thought, you know, ‘that’s my shotgun. There’s one person dead, and he’s dead as well now. I’m going to be found guilty of this’. And then I tried to cover everything up.
He also said:
… my business – my profession is working out decision-making pathways, and you might think, ‘Well, made a terrible one here,’ but quick decisions to try to come to the best outcome, that’s what I do.
•The respondent said that unlike a doctor or tradie, whose career and club memberships would not be ruined by going straight to police, his career and memberships of his shooting clubs would be over because he failed to comply with the rules about firearm storage in a car. He would be banned for life just when he had found a ‘really happy place in the world’ with family, career, and personal life. He continued:
And so this, for me, was a disaster, and I thought, ‘What else could I possibly do?’ And if I covered it up – not so much cover up this, but cover up me, to get me – to make me disappear from the scene. And I quickly made this assessment, this is the only that offered any hope – not guaranteed – any hope of avoiding that. … this is just the way I think. … And then I had a list of tasks to do, and I set myself about doing it …
The respondent further said:
This decision-making process, like, it might’ve taken me 10 minutes to explain it to you, but really, it takes just a few seconds and you’re already, you know, looking to sum it up, assess the situation, and make a decision. It wasn’t a long process.
•He packed up his camp and put the bodies in the trailer. He tidied up as much as he could. It was messy. He put things inside the tent and burnt it. He also burnt the ground where there was lots of blood. Bits of the car mirror were everywhere and he might have put some of them in the fire. He took cash, which he later used to buy fuel, but left the credit cards because it was silly to make it look like a robbery. He tried to drive out via Myrtleford but the road was closed. He drove back to Wonnangatta. He found a place wide enough in which to reverse the trailer. He placed the bodies near a tree before driving to Big River. He burnt the drone and car keys. He did not look at the footage on the drone. He tried to burn the kitchen knife that killed Mr Hill, but threw its blade in the river along with the mobile phones. He washed his trailer before returning home.
•The respondent said that:
The object was not to make them as such disappear, but for me to disappear, and then I tried to disappear up the road, but for those reasons and the cameras, I did not disappear.
•The respondent sold his trailer because of the lockdown and cashflow issues. He said he painted his Nissan because the police were looking for a dark one and also because it needed a paint. When the first lockdown ended he went back to have a look. No one had found the bodies. He covered them with sticks and rocks. Shortly thereafter the snow began. He thought that he had to finish things. In November 2020 he went back to the bodies, which were decomposing, and set fire to them. The fire burned overnight. He was sick several times. He used a dustpan to scoop up the ashes and throw them around. The respondent said:
… I tried to go back to that normal life, and then, asked – some odd questions started to be asked, and I started to get nervous that this plan was unravelling, and then you knocked on my door. And then I realised that, yep, it was unravelling. And then, at that point, I realised that I had to go back, and that’s – I had to wait for lockdown to finish and for the roads to reopen after the snow, ‘cause this is all locked off in the winter time. And I had steeled myself for the task, and I lent (sic) my myself one night to do it, and I disguised off the evidence, and there’s – there’s nothing there now.

When asked if he wanted to say anything in answer to the charges, the respondent said:
I’m innocent of murder. I’ve – I haven’t behaved well, I’ve made some poor decisions. But murder, as I understand it, I’m innocent of.
When asked if he wanted to make a handwritten statement, he said:
I think it’s pretty much covered here.

Forensic evidence

The collection and analysis of evidentiary material occurred in several stages. For present purposes it is enough to record the relevant findings.
(a)Landcruiser canopy
Three near circular spatter bloodstains, less than or equal to 1.5 mm and two unclassifiable bloodstains were found distributed on the rear panel of the frontmost section of the nearside of the canopy. The expert opinion is that the stains were caused by the application of a force to liquid blood in addition to gravity. Apparent fatty deposits were also observed. DNA analysis provided extremely strong support for the proposition that Carol Clay was the source of the blood and fatty deposits.
(b)Bucks Camp
Ash debris from the burnt campsite at Bucks Camp was found to contain pieces of glass and solar panel film from a vehicle side mirror, a zipper, a bra hook, pieces of tent and tent ropes. Small fragments were identified as possible bone fragments. DNA analysis on three of the fragments supported the view that they were from Carol Clay.
A cranial bone fragment found elsewhere at the campsite did not appear burnt. Some of the bone’s traits suggested fragmentation may have occurred peri-mortem. DNA analysis supported the view that the bone fragment was from Carol Clay. Four further cranial bone fragments were also found to have come from Carol Clay.
A metal fragment found elsewhere at the campsite was a 12-gauge fired projectile of indeterminate brand. It had a lead finish and had sustained significant impact damage. DNA obtained from the metal fragment was likely to have come from Carol Clay.
(c)Union Spur Track
Over 2,100 human skeletal remains were recovered in and on the edge of a tree hole at Union Spur Track. The majority were incomplete and highly fragmentary. Most skeletal and dental fragments showed evidence of differential burning. A metal ring belonging to Mrs Clay, an incomplete watch and other fragments of metal and glass were also found.
A small fragment of unburnt human bone was recovered from the topsoil.
Later examination of the bones indicated that they were from at least two adult humans. The analysis indicated that the remains were burnt in another location and subsequently placed in the tree hole. Examination of the cranial fragments showed very small circular radiopaque material in four fragments. These anomalies had the appearance of metal. Forensic odontology was unable to positively identify Russell Hill as being the source of any teeth remains due to their condition but comparison of five mandibular teeth and a porcelain bridge supported the proposition that the dental remains were from him. Forensic entomology indicates that the bodies underwent at least some decomposition before they were burnt and fragmented.
(d)Ballistic reconstruction
A ballistics expert examined the respondent’s 12-gauge shot gun and found that the only manner in which it could be discharged was the normal method of applying pressure to the trigger. He also concluded through shot trajectory testing that the version given by the respondent in the record of interview as to how Mrs Clay was shot was most unlikely.

The defence case

As is clear from the respondent’s record of interview, and his decision to have that version put before the jury as part of the Crown case,[6] the defence case is that the deaths of Mr Hill and Mrs Clay were both accidental.
[6]This was the basis upon which counsel for the applicant stated this Court should approach the issue.
As noted by the trial judge, if the respondent’s version is either accepted by the jury or not excluded beyond reasonable doubt by the Crown, the respondent must be acquitted not only of both murder charges but also of the unindicted alternative charges of manslaughter, if they were left to the jury.[7] Counsel for the respondent indicated during the hearing in this Court that the respondent will seek to have manslaughter left to the jury.
[7]Reasons, [58].

Revised JDA notice

The s 19(1) JDA notice particularises the following conduct by the respondent as conduct upon which the prosecution propose to rely as incriminating conduct:
(a)Shortly after killing the first person (likely to have been Russell Hill), killing the second person.
(b)Not calling for assistance shortly after the deaths of Russell Hill and Carol Clay on Mr Hill’s radio or his own UHF radio or otherwise reporting the deaths of Mr Hill and Mrs Clay.
(c)Moving items and setting fire to the tent and burning an area adjacent to the tent and many possessions of the deceased at their campsite to destroy evidence prior to departing.
(d)Removing cards from the wallets of the deceased to falsely make it look like they had been robbed.
(e)Removing from the scene the bodies of Mr Hill and Mrs Clay, their telephones, the Landcruiser’s car key and Mr Hill’s drone.
(f)Hiding the bodies of the deceased in the remote wilderness.
(g)Disposing of the mobile telephones of the deceased.
(h)Disposing of Mr Hill’s drone.
(i)In April 2020 disposing of the trailer used to carry the bodies.
(j)In May 2020 returning to the Alpine Region to return to the bodies to ensure they remained hidden and likely to take further steps to hide them.
(k)In June 2020 painting his car a different colour.
(l)On 19 November 2021, after a television report earlier that month that showed a photograph of his car with a side-mounted awning, removing the awning.
As noted by the judge in his Reasons,[8] the respondent’s position that the portion of his record of interview summarised above will be before the jury reintroduces the following conduct as evidence upon which the prosecution proposes to rely as incriminating conduct:
(m)In November 2020 returning to the site of the bodies, burning the bodies and crushing and scattering the remains.
[8]Reasons, [60].

Reasons

The judge commenced his reasons by explaining the background to the advisory ruling.[9] The evidence in the Crown case underpinning the Reasons was then summarised.[10] Next the trial judge extracted certain paragraphs from the Revised Summary of Prosecution Opening addressed to the manner in which the Crown case will be put[11] and the paragraphs under the heading ‘Circumstances of the alleged offending’.[12]
[9]Reasons, [1]–[11].
[10]Reasons, [12]–[55].
[11]Reasons, [56].
[12]Reasons, [57].
For convenience, the judge grouped the Revised Notice of Evidence of Incriminating Conduct into four categories: First, killing the second person shortly after killing the first (paragraph (a) of the Revised Notice). Second, the conduct at Bucks Camp immediately after the deaths (paragraphs (b) to (h) of the Revised Notice). Third, disposal of the trailer and alterations to the Nissan (paragraphs (i), (k) and (l) of the Revised Notice). Fourth, returning to the bodies in May 2020 (paragraph (j) of the Revised Notice). As already noted, the conduct in again returning to the bodies in November 2020 was also subject of the ruling.
The judge then set out the statutory provisions of Division 1 of Part 4 of the JDA[13] before setting out the principles applicable to them. It was noted that while the parties had argued differences in emphasis, they had agreed as to those principles[14] and also that they were summarised by Maxwell P in DPP v Scriven (Ruling No 4).[15] The judge recorded the other authorities to which he was referred.[16] Paragraphs [17] to [30] of Scriven were then set out.[17] The judge said that he had sought to apply the relevant JDA provisions and the statements of principle in Scriven in considering the various instances of conduct sought to be relied on by the Crown as incriminating conduct in the case.[18]
[13]Reasons, [61]–[68].
[14]Reasons, [69].
[15][2015] VSC 220 (‘Scriven’).
[16]These were – Weissensteiner v The Queen (1993) 178 CLR 217 (‘Weissensteiner’); R v Rice [1996] 2 VR 406; R v White [1998] 2 SCR 72 (Major J) (‘White’); R v Cengiz [1998] 3 VR 720; R v Ciantar (2006) 16 VR 26 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA) (‘Ciantar’); Butler v The Queen (2011) 34 VR 165 (Maxwell P, Ashley JA and Ross AJA) (‘Butler’); Mocenigo v The Queen [2013] VSCA 321 (Buchanan, Neave and Priest JJA); R v Butler(Rulings 1-10) [2013] VSC 688 (Croucher J); Lane v The Queen (2013) 241 A Crim R 321 (Bathurst CJ, Simpson and Adamson JJ); DPP v Zhuang [2014] VSC 276 (Kaye J); The Queen v Baden-Clay (2016) 258 CLR 308 (French CJ, Kiefel, Bell, Keane and Gordon JJ) (‘Baden-Clay’); DPP v Wan (Ruling No 1) [2018] VSC 19 (Kaye JA); DPP v Lyons [2018] VSC 297 (Kaye JA); R v Novakovic & Ors(Ruling No 1) [2019] VSC 338 (Croucher J); DPP v Ristevski [2019] VSC 165 (Beale J) (‘Ristevksi’); Doherty v The Queen [2019] VSCA 70 (Kaye, Niall and Weinberg JJA) (‘Doherty’); and R v Tan(Ruling No 2) [2023] VSC 297 (Fox J) (‘Tan’).
[17]Reasons, [70].
[18]Reasons, [71].
The first category of the notice, the second killing, was then analysed.
The judge first reproduced the relevant part of his advisory ruling, which was that the second alleged killing may not be used as incriminating conduct at all because it invited an element of bootstraps reasoning and such reasoning would raise ‘difficult – nigh on impossible – questions concerning the standard of proof to be applied to satisfaction that the second killing occurred’.[19]
[19]Reasons, [72].
Next the judge provided additional reasons for his ruling. It was ‘crucial’ to the judge’s decision that, putting aside the respondent’s account in his interview, there is no evidence of the order in which the deceased were killed but, nonetheless, the Crown says it is likely that Mr Hill was killed first.[20] The evidence allows an inference that Mrs Clay died as a result of being shot to the head with the respondent’s shotgun, but the Crown cannot say in what circumstances that even occurred or whether it did so before or after Mr Hill died. Nor, putting aside the account of the respondent, can the Crown say how, when or in what circumstances Mr Hill died.[21]
[20]Reasons, [74].
[21]Reasons, [75].
The judge concluded that there was thus no factual basis for the circumstances of the alleged conduct – the second alleged killing – from which an inference might be drawn that the respondent believed he had murdered or unlawfully killed the other deceased in the first alleged killing.[22]
[22]Reasons, [76].
This was contrasted with all other evidence of conduct sought to be relied upon as incriminating conduct which are ‘known and accepted’. The judge said:
[w]hile there may be difficulties in using that conduct to apply to both alleged killings (about which I shall say more later), they are nevertheless instances of conduct from which an adverse inference, to the exclusion of all innocent inferences, might reasonably be drawn by a jury against [the respondent].[23]
[23]Reasons, [77].
The judge said that while there would be homicide cases in which alleged conduct disputed by an accused could safely found incriminating conduct reasoning, that was because there would be other evidence in the trial from which a jury could safely conclude that the conduct occurred in the first place.[24] The Rulings in R v Butler[25] were an example of that.[26] The instant case was ‘different, and meaningfully so’ because there was no safe way of concluding that Mrs Clay was killed second or in circumstances capable of evidencing a belief by the respondent that he had first murdered or unlawfully killed Mr Hill.[27] It followed that to allow a jury to reason from the second alleged killing that the respondent believed he had murdered (or unlawfully killed) the first person would be an invitation to the jury to ‘engage in speculative, false and/or dangerous reasoning’ with respect to both alleged killings. It invited a form of bootstraps reasoning that has no place in a criminal trial.[28]
[24]Reasons, [78].
[25]R v Butler (Rulings 1-10) [2013] VSC 688.
[26]Reasons, [79].
[27]Reasons, [80].
[28]Reasons, [81].
The Crown could, however, invite the jury to reason that the respondent may have had a motive to kill the second person – or at least do an act that was unlawful and dangerous – if the jury was satisfied beyond reasonable doubt that the respondent had murdered or unlawfully killed the first person.[29] That was different from reasoning that the fact of the second alleged killing amounted to incriminating conduct in relation to the first because if the jury were already satisfied beyond reasonable doubt that the first killing was a murder or a manslaughter, incriminating conduct reasoning by reference to the fact of the second killing would be redundant.[30]
[29]Reasons, [82].
[30]Reasons, [83].
The judge found that if the jury were permitted to reason in the way sought by the Crown there would be an unacceptable risk that they would go awry and employ a ‘confusing form of inter-se-between-charges incriminating conduct reasoning’ as proof in either or both alleged murders.[31] The judge concluded that even if that was an overstatement, that form of reasoning should still not be permitted because the risk of jury confusion and a miscarriage of justice inherent in such an approach are ‘so manifest’.[32]
[31]Reasons, [84].
[32]Reasons, [85].
The judge then dealt with all remaining categories of conduct relied on.
The judge first reproduced the relevant parts of the advisory ruling.[33] There the judge found that on the whole of the evidence it would be reasonably open to a jury, acting rationally, to conclude that the conduct relied upon could only be explained by the respondent having had a belief, not that he had committed murder, but that he had unlawfully killed Mr Hill and Mrs Clay. With respect to the removal, hiding and burning of the bodies, the judge said that while it may be regarded as extreme or disproportionate behaviour, he was not satisfied that it is open to a jury to exclude the reasonable possibility that in doing so the respondent believed he had unlawfully killed the deceased as opposed to a belief that he had murdered them. Specifically with respect to the burning of the bodies, the judge expressed concern about the potential misuse of the evidence and over-estimation of its true probative worth as a basis for incriminating conduct. The judge was satisfied that those difficulties could be overcome by careful and strong directions on the use and directions or warnings as to the non-use or misuse of such evidence as evidence of incriminating conduct.
[33]Reasons, [86].
The judge then provided further reasons under five sub-headings.
The first was the distinction between more extreme and less extreme conduct. The judge said that he understood the prosecutor to draw such a distinction. The more extreme conduct was the removal of the bodies from Bucks Camp, hiding them at Union Spur Track, returning to them in May 2020 and returning to them again in November 2020 to burn them and scatter the remains. The less extreme conduct was all the other conduct relied upon.[34] The judge stated his understanding that the prosecutor did not urge that when considered alone or together the conduct in the less extreme category was capable of evincing a belief in the respondent, to the exclusion of all other beliefs, that he had committed murder as opposed to an unlawful killing. The judge agreed with that submission but said that he disagreed if the prosecutor meant that those less extreme instances of conduct, when combined with the more extreme instances, were so capable.[35]
[34]Reasons, [88].
[35]Reasons, [89]–[90].
Noting that reasonable minds may differ as to where to draw the boundaries of what conduct is and what conduct is not reasonably capable of allowing a jury to infer a belief in an accused, to the exclusion of all other beliefs, that he has committed murder, the judge noted that he was not so satisfied in this case.[36] The judge was of the view that another explanation for the conduct that could not reasonably be excluded by a jury is that the respondent believed he had unlawfully killed one or both of the deceased.[37] On the respondent’s account, Mrs Clay died when he was trying to wrest his shotgun from Mr Hill. Accordingly, he may have believed he would be held responsible for an unlawful killing notwithstanding that on his account he had committed neither murder nor manslaughter. The same logic applied to the death of Mr Hill.[38] The judge continued:
[o]r, even if [the respondent’s] account of the events that led to the deaths is rejected wholly or in part, and is put to one side, I am satisfied that a jury could not reasonably exclude that he engaged in the conduct in question in the belief that one or both of the killings were committed without murderous intent.[39]
[36]Reasons, [92]–[93].
[37]Reasons, [94].
[38]Reasons, [95].
[39]Reasons, [96].
Accordingly, on that basis, the judge determined that the items of conduct, whether individually or in combination, could not be used to demonstrate a belief on the part of the respondent of murderous intent.[40]
[40]Reasons, [97].
The second reason was the absence of evidence concerning the manner and circumstances of the deaths. The judge observed that apart from the respondent’s account there is no other evidence to show how or when Mr Hill died or the circumstances in which his death occurred. With respect to Mrs Clay, the evidence is capable of proving that she died as a result of a gunshot to her head, and that the shot came from the respondent’s shotgun, but nothing is known about the circumstances in which she was shot.[41]
[41]Reasons, [99].
The judge said that while, in those circumstances, a reasonable jury would be entitled to think that one possible reason for the conduct of the respondent was because he believed he had committed murder, a jury could never exclude the inference that he believed he had committed an offence or offences short of murder.[42] In that regard the judge analysed rulings[43] made in Tan and Ristevski. The judge found that the instant case was to be contrasted with Tan, where there was other evidence capable of establishing murderous intent and likened to Ristevksi, where there was not.[44]
[42]Reasons, [100].
[43]Reasons, [101]–[106].
[44]Reasons, [107].
Further, the judge found that there was no evidence of motive and it was ‘far-fetched in the extreme’ that the respondent would ‘just up and murder two complete strangers’.[45]
[45]Reasons, [108].
Next the judge considered other cases which supported the view that conduct as extreme as removing, hiding and/or destroying a deceased’s body should be allowed to go to a belief by an accused that s/he committed murder as opposed to manslaughter.[46] The judge considered Butler, Baden-Clay and White, all noted by him to have been decided under the common law.
[46]Reasons, [109]–[119].
The judge noted that in Butler there was no evidence of murderous intent other than the alleged incriminating conduct, but that there was evidence that the deceased met his death unlawfully and violently at the hands of the respondent. The trial judge in Butler and Ashley JA (with whom Ross AJA agreed) were ‘troubled’ by proof of murderous intent being solely reliant on the incriminating conduct. The judge noted that Ashley JA (with Ross AJA agreeing) held that the murder conviction was unsafe on the element of murderous intent. Maxwell P dissented on that point.

Turning to Baden-Clay, the judge noted that the portion of White relied upon by the High Court was the same as that relied on by this Court in Ciantar. The passage referred to the use of post-offence conduct that is so out of proportion to the level of culpability in a lesser offence as incriminating conduct being necessarily dependent on ‘the nature of the evidence in question and its relevance to the real issue in dispute’.[47] The judge stated that in Baden-Clay, unlike the instant case, there was evidence of motive and intent to which the post-offence conduct was inter-related. Further, unlike in Baden-Clay, Weissensteiner has no application in the instant case.
[47]White, 91, [32] (Major J).
The next reason that the judge found that distinguished the instant case from other cases of the same type is that there are two alleged unlawful killings, not one.[48] The judge said that it must be remembered that manslaughter is a serious crime and that a person who believed he had committed two unlawful killings would have as much reason to conceal his involvement in them as a person who believed he had committed a single murder concealing his or her involvement in that killing. The judge said:
In the same way that it might be said that one accidental killing might be unlucky, but two stretches credulity and smacks of murder, [the respondent] can call in aid the understandable concern that, on his account, having been involved in the accidental death of not one person but two (one of whom died as a result of a shot from his gun), he might not be believed if he came forward immediately and explained what had happened.[49]
[48]Reasons, [120]–[123].
[49]Reasons, [123].
The fourth reason why the judge found the evidence to be not reasonably capable of being viewed by a jury as evidence of incriminating conduct with respect to murderous intent is that there is a ‘grave risk’ that the jury would treat the murder charges as ‘a job lot’ if the conduct was allowed to go to two charges of murder when the circumstances surrounding both killings are, the account of the respondent aside, unknown except that one of the deceased died as a result of a gunshot to the head.[50]
[50]Reasons, [124]–[125].
The judge noted that the respondent’s account of Mrs Clay’s death is consistent with the forensic evidence and his account of Mr Hill’s death is consistent with the absence of forensic evidence. Even if the conduct was allowed to go to the murder charge in relation to Mrs Clay it would be wrong to do so in relation to Mr Hill’s death. One reason was that even with the most careful directions, it would be ‘nigh on impossible to expect a jury to perform the metal gymnastics involved’ in treating the incriminating conduct differently vis-à-vis the separate charges.[51] The judge concluded that it was ‘safer’ and ‘more appropriate’ to deny the jury any use of the conduct as incriminating conduct as to murderous intent.[52]
[51]Reasons, [126].
[52]Reasons, [127].
To the extent that the same criticism might be levelled with respect to the jury’s use of the conduct as incriminating conduct as to unlawful killing, the judge found that the risk was ‘not so acute – and not as likely to result in a miscarriage of justice’.[53] And, the judge was confident of being able to craft directions that ensured that if the jury were not satisfied on the whole of the evidence that the conduct showed a belief that both killings were unlawful, the conduct should not be used as evidence of incriminating conduct at all.[54]
[53]Reasons, [128]–[129].
[54]Reasons, [130].
The judge termed the final reason why he confined the use of the conduct to a belief of unlawful killing ‘prudential’ but not necessary to his conclusion.[55] The judge noted that incriminating conduct is neither a confession to a crime nor an express admission of an element of a crime or as to the negation of a defence.[56] At common law and under the JDA it is a species of circumstantial evidence. Its probative value will vary upon the evidence and issues in dispute when considered with the other evidence in the trial.[57]
[55]Reasons, [131], [140].
[56]Reasons, [132].
[57]Reasons, [133].
The judge said that the principal issue in dispute in the instant trial was likely to be whether the Crown could persuade a jury to reject beyond reasonable doubt the essence of the respondent’s account of two accidental deaths. The probative value of the conduct relied upon as incriminating conduct would potentially assist the Crown to do so. If it was allowed to go to the issue of murderous intent rather than unlawful killing, the judge said there was an ‘unacceptable risk’ that it would be used by the jury as filling a fundamental gap in the Crown case on murder, namely the absence of proof of murderous intent.[58] The jury would do this by ‘overvaluing’ the evidence as proof of murder – that is by treating the conduct as a confession to or express admission to murder – rather than viewing it as a piece of circumstantial evidence. There was an unacceptable risk that the directions in ss 21 and 22 of the JDA would fall on deaf ears.[59]

Submissions of the parties

[58]Reasons, [134]–[135].

[59]Reasons, [138]–[139].

The applicant

The applicant submits that the trial judge erred in the application of s 20(1)(b) of the JDA and usurped the function of the jury.

Ground 1 – the ‘second killing’

The applicant submitted that it was not uncommon for there to be no direct evidence of the precise circumstances in which a person has been murdered. Nor is it uncommon for there to be no body or, where there is a body, for the cause of death to be unknown. The judge was incorrect to state that there is ‘no evidence of’ and ‘no factual basis for’ the circumstances of the deaths in this case. There is evidence that Mrs Clay was shot to her head and it is unlikely that she survived the shot. It came from the respondent’s shotgun. There is evidence that Mr Hill died from a violent act in close proximity to Mrs Clay’s violent death. Both those deaths occurred in Bucks Camp while the respondent was present.
The applicant argues that unless both deceased were killed by the one shot – a suggestion which could be readily excluded by a jury – one died before the other and the acts leading to the first death were committed before the acts leading to the second. While there is no direct evidence of the order, the prosecution details how each death might be approached by a jury, the inferences that might be properly drawn in each case and the arguments as to why it is likely that Mr Hill was murdered before Mrs Clay. It is not complex, nor prone to misuse. In combination with the other evidence, a rational jury could use the fact of two violent deaths in close proximity to reject the respondent’s version of two accidental deaths.
If the jury does so and finds that the respondent, through his intentional acts killed each of the two people, it is reasonably open to the jury, in the context of the whole of the evidence, to infer that the second killing was motivated by a fear that the respondent had murdered the first person rather than simply having caused his or her death by a dangerous and unlawful act. That logic applies no matter which death occurred first. In this regard the applicant notes that R v Heyes[60] was not followed in Ciantar. Ciantar remains the law. There is no distinction between ‘pre-JDA’ and ‘post-JDA’ cases.

Grounds 2 to 5 – all other conduct

[60](2006) 12 VR 401 (‘Heyes’).

The applicant made plain that it is submitted that the instances of less extreme conduct are, when combined with the more extreme instances, capable of evidencing a belief that the respondent committed each murder. It is emphasised that the conduct should not be viewed in a piecemeal fashion. Rather, each piece of conduct is ‘part and parcel’ of the intensive and protracted effort by the respondent to destroy evidence or avoid detection or both. The applicant argued it was ‘nonsensical’ to limit use of the evidence of conduct as motivated only by a lesser crime than murder. Any limitations to the use of the evidence can be addressed through submissions and judicial direction.
The applicant argues that in his Reasons the judge placed considerable weight on the account of the respondent in the record of interview. It is submitted that assessment of that account is a matter for the jury and not the judge and that, in particular, the judge should not reason, contrary to what the respondent said in his interview, that he ‘may well have believed’ certain things. The applicant submits that at no time did the respondent describe any intentional unlawful or dangerous act. By terming the prosecution case ‘a notion’ and ‘far-fetched’, the judge has demonstrated an apparent acceptance of what the respondent said and has failed to properly consider what is reasonably open to a jury on the whole of the evidence.
Further to the submission that there is evidence as to the circumstances of the deaths of the deceased, the applicant argues that there is evidence in the interview of the respondent’s anger towards Mr Hill about the use of his drone and that is evidence of a relationship between them. It should be a matter for the jury, rather than the judge, to determine whether, on the whole of the evidence, the respondent murdered Mr Hill in anger. As in Baden-Clay, the respondent’s motive must be considered in the context of the post-offence concealment and other conduct. In any event, it is possible, where there is evidence of extreme post-offence conduct, that that conduct will, by itself, be capable of proving murderous intent.[61]
[61]Butler, 187, [134].
The applicant submits that the High Court in Baden-Clay adopted Ciantar. Ciantar emphasised that where conduct alleged to be incriminating conduct is considered in the context of all the evidence in the trial, it will be in few cases that the conduct might only be considered with respect to a lesser offence. Rulings of single judges in other murder trials are, necessarily, fact dependent and of limited assistance. The jury is the constitutional tribunal for deciding issues of fact. The judge should not usurp that role.
As to the judge’s finding that the respondent would have an ‘understandable concern’ that he might not be believed that both deaths occurred accidentally if he had come forward immediately and explained what happened, that matter should be resolved by a jury. It is for a jury to determine whether the extreme measures taken by the respondent and the reasons he provided for them are ‘understandable’. Directions may be given as to reasons other than a belief in murderous intent as to why he might have done so.
As to the complicating factor of there being two charges of murder, the applicant again submits that the judge erred in stating that there are no known circumstances of the killings and that the respondent’s account of the death of Mrs Clay is ‘consistent with the forensic evidence’. The ballistics testing showed no more than that a shot could have been fired from the front of the Landcruiser through a side mirror and towards a person behind the mirror. That does not mean that the respondent’s version is plausible. A jury ought to be able to consider this issue in the context of the respondent’s explanations overall, including why and how he destroyed the mirror. Further, the ‘absence’ of forensic evidence is not capable of being used to bolster the account given by the respondent of Mr Hill’s death. It was he who did everything possible, including destroying all potential forensic evidence and Mr Hill’s remains, to conceal the death and how it happened.
To the extent that the trial judge made references to it being ‘safer’ and ‘more appropriate’ to allow the jury to use the post-offence conduct only as to unlawful killing because it will avoid a ‘miscarriage of justice’, the applicant submits that such considerations have no role to play in the s 20(1)(b) determination. Further, such references point to the judge effectively assuming the jury’s role.
As to the judge’s concern that the post-offence conduct would be used to fill a gap in the prosecution case on murderous intent, the applicant submits that there is no distinction in the Evidence Act2008 between an implied admission and an express admission or confession. Unless recorded, the probative value of an express admission is dependent upon the credibility and reliability of a witness. No such issues arise with the conduct in question in this case. The applicant submits that it is unclear why the judge is concerned that the post-offence conduct might be used with other evidence to support an inference of guilt when that is the very essence of a circumstantial case. In giving effect to that concern the trial judge underestimates the ability of a jury to understand and follow directions.

Respondent’s submissions

The respondent submitted that the applicant’s contention that the judge acted on his own acceptance of the respondent’s version of events should be rejected. If the judge had, the prosecution would not have been permitted to rely on the post-offence conduct as incriminating conduct of even unlawful killing.
The applicant’s contention that the judge usurped the role of the jury should also be rejected. Relying on Scriven,[62] the respondent submitted that the judge was obliged to anticipate how a rational jury would undertake the exercise of assessing competing explanations. The parties were agreed that the judge should accept that Scriven correctly articulated the applicable principles. In oral submissions counsel for the respondent argued that Scriven ‘amplified’ Ciantar in a post-JDA environment.
[62]Scriven, [23]–[25].
The respondent submitted that the use of post-offence conduct as incriminating conduct as to murderous intent as opposed to unlawful killing was dependent upon the interrelationship between the evidence of post-offence conduct and the other evidence in the case. In this regard, the judge’s analysis of Tan, Ristevski, Butler and Baden-Clay was correct.
The respondent disputes that his account in the record of interview demonstrates he was angry with Mr Hill. Rather, it demonstrates he was merely annoyed. That state of mind is inconsistent with the formation of murderous intent. Further, any evidence of ‘relationship’ between the respondent and the deceased is very different from relationship evidence of a more intimate or ongoing kind. The respondent submits that it is ‘well open’ to the judge to comment that the idea that the respondent would just up and murder two complete strangers is far-fetched in the extreme.
The respondent notes that in the course of argument the prosecutor told the judge that it was ‘likely’ that Mr Hill had been stabbed and not shot. In those circumstances the judge was correct to find that his death might be above accident but below murder. That is a point of distinction with Baden-Clay, where the accused denied any sort of physical confrontation or struggle at all.
The respondent argues that the judge was entitled to consider that the ‘extreme’ behaviour had occurred after two deaths. In the interview the respondent spoke of his concern of being implicated in two deaths. In Ristevski the judge noted that the accused would have believed that the unintended but unlawful death of his wife – that is a single death – involved grave wrongdoing with grave consequences.
Further, it is submitted that the judge was entitled to consider the potential difficulty of adequately directing the jury. That consideration was part of the judge’s obligation to ensure a fair trial and did not underestimate the ability of a jury.

Standard of appellate review

Before turning to an analysis of the issues raised, we note that although the Court asked the parties in light of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore[63] to address the issue of the standard of interlocutory appellate review applicable to a s 20(1)(b) JDA decision, it is, in this case, unnecessary to decide. As will be explained, the judge erred in in his construction of s 20(1)(b). Accordingly, the result would be the same whether this Court applied House v The King[64] principles or the Warren v Coombes[65] ‘correctness’ standard.
[63](2023) 97 ALJR 857 (Kiefel CJ, Gageler, Steward, Gleeson and Jagot JJ); [2023] HCA 32.
[64](1936) 55 CLR 499.
[65](1979) 142 CLR 531; [1979] HCA 9.

The statutory framework of the JDA

In s 18 of the JDA ‘conduct’ is defined to mean the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged. ‘Incriminating conduct’ is defined to mean conduct that amounts to an implied admission by the accused of having committed an offence charged or an element of an offence charged or which negates a defence to an offence charged. An ‘offence charged’ is defined to include any alternative offences.
Section 19 of the JDA imposes a requirement on the prosecution to provide notice of evidence it proposes to rely on as evidence of incriminating conduct.
Section 20 of the JDA is in the following terms.
Evidence of incriminating conduct
(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless–
(a)the prosecution has given notice in accordance with section 19; and
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Note
A trial judge may make a determination under paragraph (b) even where the evidence of conduct relates only to an alternative offence.
(2)Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
What follows are two directions. One, in s 21, is mandatory and the other, in s 22, may be given at the request of defence counsel.[66] They are in the following terms.
[66]Section 23 outlines an optional direction in the event that evidence of conduct is led but the prosecution does not rely upon it as evidence of incriminating conduct. Section 24 makes clear that except as provided for in Division 1 of Part 4 of the JDA, a trial judge is not required to give the jury a direction regarding evidence because it is evidence of incriminating conduct or may be improperly used as evidence of incriminating conduct.
Mandatory direction on use of evidence of incriminating conduct
(1)If the prosecution relies on evidence of incriminating conduct, the trial judge must direct the jury that–
(a)the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that–
(i)the conduct occurred; and
(ii)the only reasonable explanation of the conduct is that the accused held that belief; and
(b)even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
(2)In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.
Note
Section 6 provides that a trial judge need not use any particular form of words in giving a direction to the jury. For example, in relation to the direction referred to in subsection (1)(a)(ii), if the evidence concerns an element of an offence, the trial judge could refer to “knew” rather than “believed” to better describe what the incriminating conduct, if accepted, may prove.
…
Additional direction on incriminating conduct
If the trial judge gives, or proposes to give, a direction under section 21, defence counsel may request under section 12 that the trial judge also direct the jury that–
(a)there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and
(b)the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and
(c)even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

Analysis

It is clear from the statutory provisions that the decision of a trial judge pursuant to s 20(1)(b) does not concern the admissibility of evidence but rather the manner in which evidence may be used.[67] That is, the judge must determine whether the evidence is reasonably capable of being viewed by the jury as evidence of an implied admission by the accused of having committed an offence charged, an element of an offence charged or negating a defence to an offence charged. That determination must be based on the whole of the evidence. It involves no determination of whether the jury would so view the evidence, only whether the jury could do so. In accordance with the mandatory s 21(1)(a) direction, the jury must be directed that the evidence of conduct may only be treated as evidence of incriminating conduct if the jury concludes that the only reasonable explanation of the conduct is that the accused believed that s/he committed an offence or an element of an offence charged or negated a defence to an offence charged.
[67]Doherty, [37]. That issue may be connected to admissibility where the evidence is not admissible for any purpose other than as evidence of incriminating conduct.
Under s 20(1)(b), the judge has a gate-keeper role. The central issue is the capacity of the evidence to found a process of reasoning. The judicial determination that the evidence has the relevant capacity is a necessary pre-condition to the later determination by the jury whether or not to adopt that reasoning, subject to the mandatory direction in s 21(1)(a). Section 20(1)(b) is a broad filter as to whether the evidence is fit for the jury’s consideration as an implied admission of guilt. Section 21(1)(a) constrains the jury in how that consideration is performed.
The combination of these provisions indicates that the JDA contemplates that post-offence conduct evidence may be presented to the jury as evidence of incriminating conduct of the offence charged that ultimately may not be able to be treated as such by the jury because there are other reasonable explanations for that conduct. In other words, evidence of conduct explicable by more than one reasonable argument will, usually, pass through the gateway in s 20(1)(b).
The question for a trial judge has been formulated in several ways.
Under the common law, the five judge Court in Ciantar said:
[i]n all cases, it will be for the judge to determine whether evidence of post-offence conduct, taken in conjunction with any specified acts, facts and circumstances, is capable of constituting evidence of consciousness of guilt for the purposes of an issue.[68]
[68]Ciantar, [84].
In DPP v Zhuang (Ruling)[69] Kaye JA, expressly relying upon Ciantar, said:
… the test for myself as the trial judge is whether the jury could rationally conclude that the only reasonable inference to be drawn from that conduct is that contended for by the prosecution, namely an awareness that she had murdered her daughter-in-law and was not acting in self-defence.[70]
[69][2014] VSC 276 (‘Zhuang’).
[70]Zhuang, [22].
In Scriven, Maxwell P followed Zhuang and said:
… the question for the judge to determine under s 24(1)(b)[71] is whether, on the whole of the evidence, it would be reasonably open to the jury to conclude that the conduct in question could only be explained by the accused’s having had the relevant belief in his own guilt. The judge is assessing – as best he/she can – what the jury, acting rationally, would be entitled to make of the conduct, viewed in the context of all of the evidence.[72]
[71]The relevant provision in the 2013 Act.
[72]Scriven, [23].
Thus the s 20(1)(b) question is not whether the only reasonable explanation for the conduct is that the accused believed he or she had committed the offence charged, but, rather, is another explanation one which the jury could accept or reject as reasonably possible. If so, the evidence must pass through the gateway. It is then for the jury to determine whether, on the evidence as a whole and bringing its collective life experience, wisdom and common sense, [73] it accepts or rejects the reasonable possibility of the non-incriminating or alternative explanation.
[73]Baden-Clay, [76].
The mandatory s 21(1)(a) direction requires the jury to reject any other reasonable non-incriminating explanation before it may find that the only reasonable explanation for the conduct is the implied admission of guilt to the offence charged.
It follows that where the issue is whether the conduct is reasonably explicable by a belief in guilt of the offence charged or of a lesser offence, it will not often be the case that s 20(1)(b) requires the judge to determine that the jury could exclude the lesser inference. In Ciantar, which concerned the offence of culpable driving causing death, the Court said:
even allowing that a possible explanation of the applicant’s post-offence conduct was that he was conscious that he had committed one or more of the lesser offences, as opposed to the offence charged, it does not follow that the post-offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he had committed “the offence charged”.
We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases. And, to the extent that Heyes implies the contrary, in our view it should not be followed.[74]
[74]Ciantar [39]–[40] (footnote omitted).
Later, with respect to alternative hypotheses between murder and manslaughter, the Court said:
Of course, there will be circumstances in which post offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple count presentment, or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.
But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.
Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused’s words and conduct before and during the killing and forensic evidence may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent. And comparable reasoning is equally applicable in trials for other offences.[75]
[75]Ciantar, [65]–[67].
In Baden-Clay, the High Court emphasised the same observations made by Major J in White relied upon in Ciantar:
In R v White, in the Supreme Court of Canada, Major J said:
‘As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role.’
In R v White, Major J went on to say that there may be cases where post-offence conduct, such as the accused’s flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence that it might be found by the jury to be more consistent with the more serious offence charged. There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said: ‘The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute’.[76]
[76]Baden-Clay, [73]–[74] (citations omitted).
Hence s 20(1)(b) means that the trial judge must make a determination, based on the whole of the evidence, that the conduct evidence was such that the jury could rationally conclude that the only reasonable explanation for it was that the accused held the belief that he or she committed the offence charged. That the jury might not so conclude, because the conduct evidence might be reasonably explicable of a belief that the accused had committed a different offence (or for any other reason) is, generally, a matter for them.

Conclusion

The respondent’s submission that Ciantar has been ‘amplified’ by the JDA and the post-JDA decisions – Scriven in particular – must be rejected. Both Zhuang and Scriven followed Ciantar. Ciantar found expression in ss 20 and 21 of the JDA. Appellate common law authorities remain good law. Section 20(1)(b) of the JDA is a broad filter. Neither the Zhuang nor Scriven formulation of the s 20(1)(b) determination should be read to suggest that the judge is to determine on the evidence or lack of it whether the jury should reject the non-incriminating explanation. As we have stated, given the relationship between the s 20(1)(b) judicial determination and the s 21(1)(a) mandatory jury direction, the JDA contemplates that conduct evidence will be presented to the jury as evidence of incriminating conduct of the offence charged but ultimately not treated as such by that jury. Where the conduct is capable of reasonable explanation either as a belief in manslaughter or a belief in murder, the question must be left to the jury, save for the unusual case, not this case, where the conduct is equally consistent with both explanations and there is no other evidence that bears upon the issue.
As part of the process to determine whether the post-offence conduct was reasonably explicable by a belief in murder, the judge considered other reasonable explanations, including manslaughter and accidental death. The judge found all explanations to be reasonably open, but, placing emphasis on the fact that ‘the precise circumstances of the killings are not known’ and ‘[n]or is the motivation’,[77] held that the explanations short of a belief in murder were – in effect – ‘so inherently likely’ or ‘intractably’ neutral’[78] that he refused to leave the conduct to the jury as evidence capable of constituting an implied admission of guilt as to murder. That is, the judge held that the jury could not, in this case, rationally reject as an explanation for the conduct a belief by the respondent that he was guilty of two counts of manslaughter. On this basis the judge took away from the jury the task of deciding whether or not a belief in manslaughter was a reasonably possible explanation for the conduct. By doing so the judge rendered the s 21 mandatory direction redundant and applied too fine a filter to the s 20(1)(b) determination.
[77]Reasons, [57], drawn from the Revised Summary of Prosecution Opening.
[78]Ciantar, [72], referred to in Scriven, [22].
Thus the judge said with respect to all of the evidence of conduct other than the second killing:
… even if [the respondent’s] account of the events that led to the deaths is rejected wholly or in part, and is put to one side, I am satisfied that a jury could not reasonably exclude that he engaged in the conduct in question in the belief that one or both of the killings were committed without murderous intent.[79]
[79]Reasons, [96].
The judge also said:
... while a reasonable jury would be entitled to think that one possible reason [the respondent] engaged in the impugned conduct – including his treatment of the bodies – is because he believed he had committed murder, in the absence of evidence of the circumstances surrounding the deceased’s deaths, I cannot see how a reasonable jury could exclude the inference that he believed he had committed an offence or offences short of murder.[80]
[80]Reasons, [100].
As this Court held in Ciantar, where evidence of belief in guilt of the charged offence, which by itself is equally consistent with a belief in guilt of a lesser offence (such as manslaughter), is capable in conjunction with other evidence of sustaining an inference that the accused believed himself to be guilty of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.
In this case, for the reasons that follow, there was some evidence of the circumstances surrounding the deaths. The existence of that evidence, in conjunction with the evidence of post-offence conduct, meant that must be left to the jury to determine whether the post-offence conduct demonstrated a belief in the accused that he was guilty of murder.
This case is not one of the rare circumstances in which alternative explanations or hypotheses should not be left to the jury. Considering the evidence as a whole and applying collective human experience, a jury could conclude that the very extreme nature of the post-offence conduct is not reasonably explicable other than as an implied admission of guilt to the murder of one or both of the deceased. That is, a jury could reject both manslaughter and accidental killing as reasonable explanations for both charges of murder.

Reconsideration

As we have said there is some evidence of the circumstances of the deaths of Mrs Clay and Mr Hill. A jury could accept parts of the respondent’s 24 November 2021 record of interview and reject others. That account in conjunction with forensic evidence is productive of certain basal facts. They include:
(a)Both deaths occurred on the same evening in Bucks Camp, a remote location.
(b)The respondent was present.
(c)Apart from Mrs Clay and Mr Hill, no one else was present.
(d)When they arrived at Bucks Camp neither Mr Hill nor Mrs Clay possessed any firearms.
(e)The respondent had been hunting and had firearms and ammunition in his car.
(f)The respondent and Mr Hill were in dispute over the drone and hunting. Their interaction was of sufficient heat to prompt, on the respondent’s version, the respondent to play music very loudly to annoy Mr Hill.
(g)Both deaths were violent. Apart from the respondent’s exculpatory assertions, there is no evidence as to who was killed first. Mrs Clay was shot to the head by the respondent’s shotgun when adjacent to Mr Hill’s car. There is no forensic evidence as to how Mr Hill was killed.
(h)The respondent was the last person left alive at Bucks Camp.
Against those basal facts it is convenient to consider the conduct, as the judge did, in two groups – the second killing and all other conduct.

The second killing

As already noted, the Crown cannot say in which order the deaths occurred but frames its case on the likelihood that Mr Hill died first. The success or otherwise of the prosecution case is not dependent upon the jury accepting that theory, but the order of killing is relevant to this issue.
Unlike the judge we are not concerned about bootstraps reasoning. It is not to engage in such reasoning to contend that the respondent killed the second person intentionally because he or she was a witness to the first death and that, if the jury are satisfied that the second person was killed intentionally, that killing thereby could evidence a belief in the respondent that he had murdered the first person killed. In other words, the second person was intentionally killed because he or she had been a witness to a murder, as opposed to a manslaughter or fatal accident. That logic applies no matter which person was killed first.
Nonetheless, such reasoning, if it is to be used, must be employed with respect to a specific charge on the indictment. That is, if Mrs Clay was killed first, the jury could, if they found beyond reasonable doubt that the respondent subsequently murdered Mr Hill because he was a witness to the murder of Mrs Clay, reason that his murder was an implied admission of the murder of Mrs Clay. The reverse is also true.
The difficulty at this stage is that the evidentiary basis on which the jury could determine the order in which the deceased died unlawfully is as yet unclear. The Crown presently frames its case on the likelihood that Mr Hill died first. In his record of interview the respondent states that Mrs Clay died first. The respondent’s statement of the order of the deaths is tied up with his exculpatory explanations for them. The position may become clear once all the evidence is in. It is at that point that the trial judge will be able to determine if the intentional death of the named person who died second in time (if the jury are first satisfied of that fact) is available as evidence of incriminating conduct in the trial for murder of the named person who died first in time.
If that point is reached, it is immaterial that a jury might reason that the second killing was intentional because the respondent panicked following an accidental killing or an unintentional killing caused by an unlawful and dangerous act. Following the s 21(1)(a) direction, the jury would need to exclude those explanations as reasonable before the evidence could be used as evidence of an implied admission of murder of the person killed first in time.
It follows that we consider it to be premature to determine whether the Crown should be permitted to rely upon the second killing as detailed in paragraph (a) of the Revised Notice as evidence of incriminating conduct.

Other conduct

Each individual piece of post-offence conduct is a piece of circumstantial evidence to be considered with both the other pieces of post-offence conduct and the other evidence. If the individual piece of evidence considered with the other evidence could lead a jury to find a murderous intent on the part of the respondent, it will be admissible as some evidence bearing upon that issue.
Here, the judge’s ‘prudential’ concern is misplaced. If the jury do reason that the relevant conduct is conduct incriminating of murder, they would be entitled to use that evidence as evidence of murderous intent, even in the absence of other evidence to support such conclusions.[81] It is the jury’s role to consider this circumstantial evidence as part of the circumstantial case. It does not equate with treating the incriminating conduct evidence as a confession to murder. It would not engender a miscarriage of justice. It is not to be lightly assumed that a jury would be incapable of following the directions in ss 21 and 22 of the JDA or any other directions.
[81]Butler, [1] (Maxwell P), [134] and [137] (Ashley JA with whom Ross AJA agreed).

All conduct upon which the Crown seeks to rely as evidence of incriminating conduct is plainly capable of allowing a rational jury to conclude that the only reasonable explanation of it is that the respondent believed that he had murdered Mr Hill and Mrs Clay. The jury could rationally conclude that having murdered both of them, the respondent immediately engaged in a deliberate, calculated and protracted series of actions to disguise his involvement in, and the manner of, their deaths. It is a matter for the jury to determine whether or not the incriminating inference is to be drawn.
In this regard it is to be recalled that in his 24 November 2021 account the respondent said that the post-death actions he took in panic were aimed at making him disappear – to disconnect him from the deaths – rather than making Mr Hill and Mrs Clay disappear.
Each item of conduct particularised in the Revised Notice builds on each other. The culmination is the burning of badly decomposed bodies about seven months after the deaths – an activity that took all night and made the respondent physically sick – and the scattering of the remains. The jury could conclude that such conduct is disproportionate to accidental or unintentional killing and capable of founding incriminating conduct reasoning for the crime of murder. Moreover, the jury could conclude that each of the previous steps detailed in the Revised Notice could also only be described as an extraordinary response to accidental or unintentional killings.
Considered alone and in combination with each other and the whole of the rest of the evidence, it would be open for the jury to conclude that each piece of conduct was intended not only to distance the respondent from the scene but to obliterate any possibility that there could be forensic evidence which could reveal anything about the manner in which each of the deceased died. From that the jury could reason that the only rational explanation was that the respondent believed he had murdered each of Mr Hill and Mrs Clay and the forensic evidence was likely to reveal or support that belief.
The logical basis for that pathway of reasoning does not over-estimate the true probative value of the evidence. The jury will be appropriately directed as to their need to be satisfied that the only reasonable explanation for the conduct is that the respondent believed he had committed the offence or offences charged. That the conduct occurred after two deaths rather than one is a reason to allow the jury to determine whether or not ‘one accidental killing might be unlucky, but two stretches credulity and smacks of murder’[82]. There is no unacceptable danger that the jury will treat the two charges as a ‘job lot’.[83] The jury will be appropriately directed as to the need for separate consideration and will understand that in respect of each charge the use of the conduct as incriminating conduct will require a finding – with respect to each deceased – that it is the only reasonable explanation for it. On the facts of this case, the respondent destroyed the joint campsite of the deceased and destroyed both bodies, as well as disposed of the trailer and altered his Nissan that was at the joint campsite of the two deceased.
[82]Reasons, [123].
[83]Reasons, [125].
The respondent’s hypothesis is that a person who believes he is guilty of two unlawful killings – that is two counts of manslaughter – knows that he is in really serious trouble and that his subsequent actions are equally explicable by a belief in two manslaughters as they are by a belief in two murders. That is, the incriminating conduct could equally be the product of a belief in double murder or double manslaughter. The answer to that is twofold. First, the defence hypothesis is double accident, not double manslaughter or single manslaughter. Secondly, as we have explained, the post second killing conduct is so extreme that a jury could conclude that it is only consistent with a belief in double murder. There is a large distinction to be drawn between a response to double manslaughter belief and a double murder belief.

Manslaughter

If a jury were not satisfied, on the basis of all the evidence, that the respondent had a murderous intent, each individual piece of conduct evidence would also be available, along with all the other evidence, as bearing upon the issue of the respondent’s intention on the charge of manslaughter. In other words it is relevant as incriminating conduct to the issue of whether the respondent, at the time of the fatal act, intended some harm, not trivial, but falling short of an intention to kill or cause really serious injury.
Viewed in this way, each piece of circumstantial post-offence conduct evidence is available to the jury when considering both murder and manslaughter. It is not one or the other.

Conclusion

Leave to appeal is granted and the appeal allowed. The interlocutory decision is set aside. Except for paragraph (a) the Crown is permitted to rely upon the evidence identified in its Revised Notice, as well as the evidence that the respondent in November 2020 returned to the site of the bodies, burnt them and crushed and scattered their remains, as evidence of incriminating conduct both as to murder and manslaughter.

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[2024] VSCA 62

12 April 2024