Flight

Ipp JA

1. I agree with Simpson J.

Simpson J

2. On 19 July 2002, following a two week trial by jury in the District Court in Sydney, the appellant was convicted on an indictment which charged him with the offence of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse, a charge brought under s61K(b) of the Crimes Act 1900. On 20 November 2002 he was sentenced to imprisonment for twelve years with a non-parole period of 9 years, to commence on 12 July 2001. The appellant appeals against conviction and seeks leave to appeal against the sentence.

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6. Ms Jolly arrived on the scene and shouted at the appellant to release the complainant. A voice came over the scanner, warning the appellant that the police were coming and that they knew who he was. The appellant said to the complainant:

"Look what you made me fucking go through. Look what you made me fucking go through."

7. He pressed the knife into the complainant, causing real pain, and ran off. Immediately before doing so, he told the complainant that she would "pay for it".

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10. On 9 April the appellant left the bag of clothes in a car belonging to Christine Oldfield, the owner of business called Slipstream Plastics. (The evidence does not disclose when or how the appellant retrieved the bag from Ms Bruen's home.) On 11 April Ms Oldfield removed the bag from her car and put it in the storage room of her business premises.

11. At about midday on 11 April the appellant went to the premises of Slipstream Plastics and took possession of the plastic bag. At almost the same time two police officers arrived. They told Ms Oldfield that they wished to speak to the appellant. The appellant ran through the premises and jumped out a window and hid behind an upturned boat in what was described in the evidence as "a compound". He then disappeared.

12. The appellant telephoned Ms Bruen, and went to her home at about 3.30 pm on the same day. He told Ms Bruen that he had been accused of the attack on the complainant, but denied that he had been involved. Twenty minutes later police arrived and knocked on the door. The appellant climbed into a manhole in the bathroom and secreted himself in the ceiling cavity. Just before doing so he threatened Ms Bruen with reprisals in the event that police located him.

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19. Three grounds of appeal against conviction were ultimately pleaded. They were framed as follows:

"There was a miscarriage of justice and that the accused did not receive a fair trial in that:

(1)(A)    His Honour erred in admitting evidence of flight.

(1)(B)    Having admitted evidence of flight, his Honour erred in not directing the jury how they were to use that evidence of flight as part of the circumstantial case.

(2)         The Crown erred in categorising the accused's assertion that he was outside Coles at the time of the offence, as a `lie told in consciousness of guilt'. His Honour's direction as to how that evidence was to be approached was insufficient to correct that error."

ground (1)(A): admission of evidence of flight:

20. At an early stage the Crown made plain its intention to adduce evidence of the appellant's conduct of 11 April, both at Slipstream Plastics, and later, at Ms Bruen's home, as evidence of flight signifying a consciousness of guilt. The specific conduct at Slipstream Plastics was identified as his running through the premises and climbing out a window, hiding, and then disappearing, on the arrival of police; the specific conduct at Ms Bruen's home is identified as his having climbed into the manhole and secreted himself in the roof, again on the arrival of police.

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22. The conditions to which his Honour referred were stated in R v Lucas, (Ruth) [1981] 1 QB 720 and adopted in the judgment of Clarke JA in Heyde. It is apposite to note that the conditions are directed to the determination of whether or not the lies upon which the Crown sought to rely are capable of amounting to corroboration. The four conditions laid down in Lucas are:

(i)           that the lie is deliberate;

(ii)          that it relates to a material issue;

(iii)         that the motive for the lie is a realisation of guilt and a fear of the truth;

(iv)         (where relevant) that it is shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is, by admission or by evidence from an independent witness.

23. To these I would add that the lie must be capable of being seen as indicating consciousness of guilt of the specific offence with which the accused is charged.

24. Two separate issues arise when the Crown tenders such evidence. The first goes to the admission of the evidence. In order to admit the evidence tendered, the trial judge must be satisfied that it is capable of meeting the five conditions outlined. If it is not so capable then the evidence is inadmissible. If, however, it is so capable, then the evidence may nevertheless be rejected pursuant to one of the discretions available to a trial judge, for example, the discretion conferred by s135 of the Evidence Act 1995, or following the exercise required by s137 of that Act. The second issue, which arises only where the evidence has been admitted, concerns the directions to be given to the jury by the judge as to the use that may be made of the evidence.

25. The principles developed in relation to evidence of lies are readily adaptable to the circumstance

where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt. Evidence of flight may be admitted where the jury may legitimately infer that the flight was occasioned by consciousness in the accused person of guilt - that is, of guilt of the offence with which he/she is charged. Here, the jury was asked to infer that, because the appellant fled on two occasions when the police approached, he exhibited a consciousness of guilt of the attack on the complainant. If the evidence were admitted, the appellant was placed in an awkward position. He could attempt, either through evidence given by him, or by witnesses called by him, or by cross examination of the Crown witnesses, to explain away his conduct in a manner that would exonerate him of the attack on the complainant (even if that implicated him in some other offence), or he could leave the evidence as it was given, with the obvious possibility (even probability) that the jury would draw the inference adverse to him.

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47. In my opinion none of the authorities to which reference has been made support the proposition advanced on behalf of the appellant. There is no general principle that, when the explanation for flight involves revealing other offences, the evidence should be rejected. Indeed, it is part of the conventional direction in relation to evidence indicative of a consciousness of guilt (whether of lies, or flight, or otherwise), that the jury be alerted to the possibility that the accused person has undertaken that course of conduct by reason of consciousness of guilt, not of the offence charged, but of some other offence or discreditable conduct.

48. Here, however, there, was, as I have said above, an added poignancy. The admission of the evidence put the appellant in an awkward position. His response to the evidence not only disclosed previous criminal offences, it disclosed criminal offences with a disturbingly close relationship to the offence with which he was charged. That the evidence would have a prejudicial effect is clear. The appellant's explanation, although disbelieved by the trial judge (and disbelieved in terms forcefully expressed) was not, in my view, incapable of belief by a jury. The appellant had gone to Ms Bruen's home in the early hours of the morning, while she was in bed, and joined her, uninvited, in her bed. Whatever he said to police about his state of mind with respect to the currency of the ADVO, it was then undoubtedly still current. His attendance at the house put him in breach of it, and having regard to the circumstances, in serious breach. It remains to be determined whether the prejudicial effect of the evidence was unfair. Bearing in mind the substance of the charge the appellant faced, and the nature of the evidence he would have to adduce in order to meet the flight evidence, I have come to the conclusion that the prejudicial effect was unfair, and that it outweighed the probative value of the Crown evidence. In this regard, it cannot be overlooked that the decision to admit the evidence may well have been a factor in the consideration of whether the appellant was to give evidence or not.

49. I am therefore satisfied that the evidence was wrongly admitted.

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51. The judge gave no direction at all in relation to the way the jury were entitled to use the evidence of flight, merely referring, on two occasions, to the evidence. He did not draw to the jury's attention the possibility of that conduct being attributable to some other cause, such as fear of being unjustly accused, or consciousness of guilt of some other offence. He made no reference to the cross-examination of Ms Bruen, through whom the evidence of the existence of the ADVO was elicited. No additional directions were sought on behalf of the appellant and, accordingly, Rule 4 of the Criminal Appeal Rules applies. The appellant must obtain the leave of the Court to argue the ground. On his behalf it was argued that leave should be granted because the failure to give the direction led to a miscarriage of justice.

52. I have come to the view that this ground of appeal also is made good. The direction on how the jury could make use of the evidence of flight is fundamental. The direction should be given, in hypothetical terms, even where there is no evidence of an alternative explanation. Where there is actual evidence of an alternative explanation, that evidence should be drawn to the jury's attention, and the way it is to be assessed should be explained. Here, although the appellant did not give evidence in the trial proper, there was some evidence, from the cross-examination of Ms Bruen, sufficient to found its reference to a jury.

Adams J

73. I agree with Simpson J and have nothing to add.

Tobias J

1. I agree with McClellan CJ at CL.

McClellan CJ at CL

2. The appellant and Collin John William Iliffe were jointly charged with the offence of robbing Matthew Ernest Peiti of $53,678.85, being the property of the South West Rocks County Club Limited, when armed with an offensive weapon, namely a firearm, at South West Rocks on 17 November 2002. The appellant and the alleged co-offender pleaded not guilty. The appellant was tried and convicted. The alleged co-offender was discharged at the end of the Crown case.

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4. The Crown case was circumstantial. When sentencing the appellant the trial judge made the following factual findings. It provides a useful summary of the Crown case:

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Later that evening, the maroon Commodore was driven to the Aboriginal Mission at Bellbrook, where it was left at the rear of a cottage. After the orange Monaro left the location where it had stopped near Greenhills, it was driven back through Kempsey and as it was travelling south along the highway travelling to Port Macquarie. After it had just left Kempsey, it was observed by a police vehicle which was travelling north to Kempsey in the opposite direction. The occupants of the orange Monaro, at the time, were the offender, who was driving, Adam George, Robert Quinlan, and the two young girls. The police vehicle was being driven by Senior Constable Waller, with Probationary Constable Duckworth, as passenger. On seeing the orange Monaro, the police vehicle did a U-turn, and travelled down the highway to catch up with the orange Monaro, which at that time, was not being driven at excessive speed.

When the police vehicle caught up with the orange Monaro, which at that stage was travelling behind a truck, its blue and red lights which had been activated from the time it left Port Macquarie were still activated, and the orange Monaro pulled over without any fuss to the side of the highway.

              …

During this period, his behaviour towards Constable Waller was extremely agitated and aggressive. After this exchange, Constable Waller turned to the police vehicle and asked Constable Duckworth, who had remained in the police vehicle, to get help. When Constable Waller turned back, the offender had, in the meantime, walked quickly back to the orange Monaro and Constable Waller saw him get into the driver’s seat. The other person who had left the orange Monaro was also observed to get back into the car. The orange Monaro then took off at high speed in a southerly direction. The orange Monaro did a U-turn approximately 100 metres down the highway and then returned back in a northerly direction towards Kempsey.

The police vehicle then did a U-turn across the grassed median strip, and followed the orange Monaro. As the vehicles entered the Kempsey township, the police vehicle was travelling at a speed of about 120 to 140 kilometres per hour and the orange Monaro was pulling away from the police vehicle. These speeds were recorded while the orange Monaro was travelling through a 50 kilometre per hour speed zone in Kempsey. At one point in time the police vehicle reached a speed of 180 kilometres per hour, and the orange Monaro was still pulling away from the police vehicle, well off into the distance travelling towards Burnt Bridge. The pursuit, which lasted approximately five minutes was terminated when the police officers lost sight of the orange Monaro.

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Ground 1: The trial judge erred in admitting evidence said to be evidence of flight disclosing a consciousness of guilt on the part of the appellant

7. Although objection was taken, following a lengthy examination of the issue in a voir dire, the trial judge admitted the evidence of the appellant’s flight from the police when stopped on the highway. When objecting to the evidence, the appellant’s counsel at the trial identified three reasons why it should not be admitted. Those reasons are relied upon before this Court. They are:

1. The evidence could not properly be characterised as evidence of flight;

2. The Trial Judge should exercise his discretion pursuant to s.135 of the Evidence Act 1995 to exclude such evidence; and

3. The Trial Judge should exclude such evidence pursuant to s.137 of the Evidence Act 1995.

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13. In light of these matters, it was submitted that His Honour erred in finding that the relevant evidence was capable of being characterised as flight. It was submitted that there is more than one offence-unrelated reason as to why the appellant may have left the scene in the circumstances in which he did. This included leaving the scene as a direct result of the actions of the police at the scene. It was further submitted that in the final analysis the evidence is “intractably neutral” (see Doyle CJ in R v Power & Power [1996] SASC 5653; (1996) 87 A Crim R 407 at 409; R v Ho [2002] NSWCCA 147; (2002) 130 A Crim R 545; R v Cook [2004] NSWCCA 52) and should have been excluded.

14. The Crown accepts that the evidence, if it was adduced in the modified form that the appellant suggested, could be characterised as “intractably neutral”, but, submitted that there was no reason for the trial judge to rule that the evidence should be led in such a modified form. The Crown submitted that the fact of the appellant driving off in the manner that he did, and driving at the speed that he did, was evidence which, if accepted by the jury, could be characterised as flight. It was further submitted that it was a matter for the jury to determine whether such evidence did amount to flight, provided the jury were properly directed as to how they could use such evidence. As it happened the appellant makes no complaint about such summing up, either at the trial or in the appeal.

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21. Although there may be cases where the preferred explanation may be so prejudicial that the evidence of flight should be excluded this was not such a case. Having been involved, with others, in prior dealings with the police did not produce prejudice of concern in this case.

22. In my opinion the evidence was correctly admitted. Although the appellant suggested that his reason for fleeing was his previous experience with the police it was for the jury to assess whether he should be believed in this explanation. Disclosure of his previous experience did not require disclosure of an offence, merely dealings with the police. Any prejudice to the appellant was capable of being adequately addressed by the trial judge’s directions.

23. Although the appellant was justifiably able to emphasise the fact that he had obeyed an initial command from the police to pull over, he would not at that point have necessarily believed that he was under suspicion for the robbery. To have avoided the police may have incriminated him when he was not otherwise under suspicion. However, the actions of the police in requiring him to put his hands on the bonnet were inconsistent with him being questioned for a traffic matter and suggested a more significant concern in the minds of the police officers. If, as would seem probable, he was to be searched and if, as was the Crown case, he had a weapon in his possession it would be likely that it would be discovered, providing a link to the robbery.

24. It must not be overlooked that the appellant not only fled, and the evidence of the police was that he did so at high speed, he also took steps to secrete his motor vehicle. This was hardly the action of a person who reacted spontaneously out of a fear of police weapons. I am satisfied that it was open to the jury to infer that the appellant was avoiding apprehension for the alleged offence and admission of the evidence did not give rise to unfair prejudice.

25. I would reject this ground of appeal.

Hoeben J

50. I agree with McClellan CJ at CL.

McClellan CJ at CL

1. The appellant was tried and convicted upon an indictment which contained one count in the following terms:

“On 8 January 2004 at Sydney in the State of New South Wales, supplied a prohibited drug, namely, cocaine, in an amount of 500.3 grams, being an amount not less than the commercial quantity for that drug.”

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16. The Subaru was subsequently pulled over in the Haymarket area. The police told the appellant that they had information that there were drugs in the car and checks needed to be done. The appellant gave his licence and the car keys to the police. Whilst the police were conducting checks on the vehicle the appellant and Francisco ran from the car. The appellant took the package he had put under his seat with him.

17. The appellant was subsequently apprehended. Whilst running from the car he threw a bag under a red Mercedes motor vehicle. That bag was later found to contain cocaine. It had the words “Red Gold Riven, Little Hay Street” written on the outside. The appellant said he did not know what type of drug was in the package, nor its weight. He claimed that the drugs belonged to Nikolovski.

18. When the Subaru was searched $6,000 was found inside the Hugo Boss bag. The scales and gloves were found to contain traces of cocaine. The appellant’s mobile phone was found in the “bum bag” he was wearing. It also revealed traces of cocaine. The appellant said he did not know in what circumstances his phone came into contact with cocaine. The cocaine was found to weigh 500.3 grams with a purity of 83.5%.

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29. It was submitted that the jury should have been warned that a person may flee for reasons other than guilt eg panic, or being wrongly accused. Furthermore, it was submitted that before the evidence could be used as consciousness of guilt, the jury must be satisfied beyond reasonable doubt that the appellant sought to flee to escape arrest for the offence with which he was charged.

Resolution of the appeal

30 The evidence of the appellant’s attempt to escape from the police was admitted without objection. This was inevitable, because it formed part of the sequence of events which revealed the appellant’s connection with the drugs he had discarded. For this reason the Crown, and her Honour when summarising the Crown case, included a reference to the fact that the appellant panicked when it became apparent that the car would be searched causing him to run away. To my mind it was not relied upon as evidence of consciousness of guilt of the offence as charged. It was merely an incident which, together with the other evidence, comprised the circumstances from which the jury could be satisfied of the appellant’s guilt.

31. However, if it be accepted that it was relied upon as evidence of consciousness of guilt I do not believe that any directions beyond those which her Honour gave were required in this case. The necessity for a special direction comes from the risk that the jury may reason towards guilt when there may be other, and innocent, explanations for the accused’s actions. The same position arises with lies told by an accused. Although many people would be aware of the possibility of an innocent explanation, unless reminded, there is a risk that the jury, being aware of the flight or lie, which is capable of having a powerful impact, may, without adequate reflection, convict an accused.

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33. Only one qualification may be necessary to her Honour’s remarks. Her Honour speaks of the jury being satisfied that the lie or flight points unequivocally to consciousness of guilt of the relevant offence. In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ emphasized that unless the alleged lie is the only evidence against an accused, or an indispensable link in the chain, it does not have to be proved beyond reasonable doubt (p 210).

34. In the present case it was plain that the appellant sought to escape in order to avoid apprehension for an offence relating to the drugs he had discarded. He said that he did so because he might be wrongly accused of possessing the drugs. His counsel reminded the jury of this explanation and her Honour, in summing up, also reminded them of it. No other explanation was offered. It follows that there was no reason for the trial judge to remind the jury that persons may have reasons to flee other than from a consciousness of guilt. The issue was properly placed before the jury.

McClellen CJ at CL

1. The appellant was convicted of the murder of Warren Dickson on 13 February 2005. He appeals that conviction. There are three grounds of appeal, two relating to the admission of evidence. The other ground raises one aspect of the trial judge’s summing up for consideration.

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4. The evidence was that the appellant had gone to the deceased’s house wearing gloves and a balaclava. Although the appellant said he was wearing thongs it was the Crown case that he was wearing sneakers. The Crown alleged that he was carrying an iron bar or crowbar, although the appellant claimed that he was carrying a piece of “reo.” He “shimmied” up the pipe outside the rear kitchen window, broke the glass and climbed in. It was the Crown case that he intended to cause serious injury to the deceased. The appellant said that he had entered via the kitchen window because the deceased had not answered his door on a previous occasion.

5. The deceased was apparently awakened by the noise and confronted the appellant in the kitchen. Significant pools of blood were found in the kitchen and it is apparent that the deceased was killed at this location. A post-mortem was carried out which indicated that the deceased suffered two fatal wounds to his neck: one a slash wound and the other a stab wound. Death would have followed quickly as a result of either wound. The weapon used to make the wounds was never found.

6. After the deceased had died the appellant dragged him through the house to the main bedroom. The appellant, using an accelerant, set the house alight and fled the scene. The seat of the fire was identified as the main bedroom.

7. The appellant met Ms Deluca later on the morning of 14 February. He feigned ignorance of the events. When spoken to by the police he denied any involvement in the crime and claimed, contrary to the evidence of his daughter, Kimberley, that he was home all night. He denied knowing the deceased’s name or where he lived. He said to the police “Lucky I didn’t know the guy or I’d be the prime suspect.” On 16 February 2005 the police inspected the appellant’s house and car. During the course of the search, Det Buining apparently detected blood on some portion of the appellant’s car. He called over another police officer and informed him of his discovery. The evidence indicates that the appellant’s demeanour, which had previously been calm, suddenly changed.

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13. On 18 February the appellant robbed the bank at Wauchope. He said that he used a replica pistol. The teller who was removing money from teller boxes said to him:

“Isn’t there any other way? Are you sure you want to go through with this?”

14. The appellant replied:

“Once they find out what I did last week, that’s it. I need the money.”

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29. The appellant submitted to this Court that the evidence of the armed robbery, although having some probative value, was weak and the evidence, being unfairly prejudicial to the appellant, should have been rejected. In the alternative it was submitted that “surgery” could have been carried out on the evidence and the conversation with the bank teller tendered without evidence that it occurred during a robbery.

30. Before the trial commenced the appellant had unsuccessfully sought to have his trial for the armed robbery count separated from his trial for the murder. That application was rejected but no appeal was filed. When the matter was agitated during the trial, counsel for the appellant indicated that the appellant admitted as a fact that (a) he attended the residence of the deceased on the day of his death; (b) he entered the deceased’s residence; (c) there was a verbal and physical confrontation with the deceased; and (d) he inflicted the fatal wounds during the course of a struggle. The appellant also admitted that he had robbed the bank.

31. The trial judge considered an objection to the evidence which he identified as being evidence of the robbery together with statements about it either before or after the event. His Honour identified the fact that the principal issue in the trial was likely to be self-defence. His Honour determined that the appellant’s statements to other persons as to the nature of, and reasons for his actions were intertwined with his statements regarding his intention to obtain money unlawfully and to flee. His Honour was further of the view that evidence of the proposed robbery and flight was capable of demonstrating consciousness of guilt, although whether it had this quality was a matter for the jury. His Honour referred to the remarks of Simpson J in R v Cook [2004] NSWCCA 52 where her Honour considered the issues relevant to lies which were said to reflect consciousness of guilt (at [21] and following).

32. His Honour concluded that parts of the statements made by the appellant to Ms Mitchell, Ms Barkwill and to Ms Mathews relating to his intention to rob a bank or the fact that he had committed a bank robbery to provide funds for his contemplated disappearance were relevant as possible evidence of consciousness of guilt. The robbery and contemplated flight might be found by the jury to reflect an awareness on his part that his actions in killing the deceased did not flow from a belief that he had been acting in defence of his person. Similarly his Honour ruled that the evidence of the removal of the children to Queensland and his return to New South Wales and the carrying out of the robbery at Wauchope were capable of reflecting a consciousness of guilt.

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36 In my judgment the challenged evidence was properly admitted. The admissions which the appellant made in the course of the robbery were capable of being understood by the jury as reflecting a consciousness in the appellant that he had wrongfully killed the deceased.

37 The appellant’s reaction to the killing, including the commission of the armed robbery, was an indication of his state of mind and how he viewed his actions. He told his mother in the note to her “All I know is, that the thought of spending the rest of my life in prison does not appeal to me.” It was open to the jury to conclude that his flight, and the measures he took to stay on the run from the police, including raising money by robbing the bank, indicated a consciousness on his part that he had not acted in self-defence.

38. The appellant said that his reason for committing the armed robbery of the bank was to “lay low” for a while to evade capture for killing the deceased. He did not suggest that he committed the robbery for some unrelated reason.

39. The appellant was not in the dilemma referred to in R v Cook [2004] NSWCCA 52 of being unable to say anything about the evidence or being required to disclose unrelated criminal activity. The defence had available the submission to the jury, as was submitted to this Court, that the appellant’s actions were motivated by panic and borne of a feeling of moral (not legal) responsibility or the prospect of unjust arrest.

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43. Any effect upon the appellant of the alleged provocation could not be separated from his actions said to have been done in self-defence. The appellant only described himself lashing out with the knife once and it is difficult to see, on his account, how excessive force entered into the equation. If his account was accepted he had lawfully acted in self-defence. At the very least from his account of the relevant events he would have believed that his actions were lawful. It must be remembered that the appellant claimed that he was initially confronted by the deceased who was carrying the knife. In these circumstances the appellant’s reaction to the killing including his actions in fleeing the police and committing the armed robbery were capable of indicating how he truly viewed his actions.

44. There are further considerations. In my opinion it was open to the jury to conclude that the appellant’s statement to the bank teller constituted an admission that he had murdered the deceased. He told the teller: “Once they find out what I did last week, that’s it. I need the money.” Even if the statement was open to being construed as an innocent interpretation, it was capable of being understood as an admission that he had killed the deceased without justification. There were other admissions interwoven with the robbery. These included the conversation he had with Ms Barkwill and the counting out of the money and revealing the gun. To my mind the circumstances associated with the robbery were inextricably bound up with the conduct of the appellant following the killing and were admissible.

45. The appellant emphasised that the prejudicial effect of the evidence was high and submitted that for this reason it should have been rejected (s 137 Evidence Act 1995). I do not accept that submission even though the evidence revealed another criminal offence: see Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 at 116; Smale v R [2007] NSWCCA 328 at [33]. The same position prevails in relation to offences committed during flight: R v Cook [2004] NSWCCA 52 at [47]; Quinlan v R [2006] NSWCCA 284; (2006) 164 A Crim R 106 at [18]. The detail of the robbery was not an issue. There was no difficulty for the jury in separating the fact of the robbery from the killing and there was, in my view, no prospect of the jury using the evidence in an impermissible way. As the respondent pointed out, it was possible for the appellant to have turned his admission of the robbery to his advantage. Having made that admission and given himself up to the police, he was in a position to indicate that he was a person telling the truth including giving a truthful account of the circumstances in which he killed the deceased.

Hoeben CJ at CL

1. Charges and sentences

The applicant Kevin Gall was charged with the following offences:

Count 1 – On 16 April 2010 he did murder Neil Leopold Green contrary to s18 of the Crimes Act 1900 (the Act).

Count 3 – On 16 April 2010 he did with Bruce Gall shoot at Michael Fox with intent to murder contrary to s29 of the Act.

Count 4 – On 16 April 2010 he did with Bruce Gall discharge a firearm with intent to cause grievous bodily harm to Michael Fox contrary to s33A(1)(a) of the Act.

Counts 5, 6, 7 and 8 – On 6 May 2010 he possessed a prohibited pistol, firearm and weapons contrary to s7(1) of the Firearms Act 1996 and 7(1) of the Weapons Prohibition Act 1998.

Count 9 – On 19 June 2010 he influenced Martin Lapich to give a false account to the police and to destroy evidence with intent to pervert the course of justice contrary to s319 of the Act.

Count 10 – On 16 November 2010 he did with Bruce Gall possess a prohibited firearm contrary to s7(1) of the Firearms Act 1996.

2. When Kevin Gall was arraigned before Justice Adamson on 27 August 2010 he pleaded not guilty to counts 1, 3, 4 and 10 and guilty to counts 5, 6, 7, 8 and 9.

3. His father, the applicant Bruce Gall, was charged with the following offences:

Count 2 – Knowing that Kevin Gall had committed the said murder on 16 April 2010 he did receive, harbour, maintain and assist Kevin Gall contrary to s349(1) of the Act.

Count 3 – On 16 April 2010 with Kevin Gall he did shoot at Michael Fox with intent to murder contrary to s29 of the Act.

Count 4 – On 16 April 2010 with Kevin Gall he did discharge a firearm with intent to cause grievous bodily harm to Michael Fox contrary to s33A(1)(a) of the Act.

Count 9 – On 19 June 2010 he influenced Martin Lapich to give a false account to the police with intent to pervert the course of justice contrary to s319 of the Act.

Count 10 – On 16 November 2010 he did with Kevin Gall possess a prohibited firearm contrary to s7(1) of the Firearms Act 1996.

4. When Bruce Gall was arraigned before Justice Adamson on 27 August 2010 he pleaded not guilty to counts 2, 3 and 4 and guilty to counts 9 and 10.

5. The applicants were tried jointly. Their trial commenced on 27 August 2012 and the jury retired to consider their verdicts on 12 September 2012. The jury returned with verdicts on 14 September 2012 as follows:

Kevin Anthony Gall – Guilty on counts 1 and 4; Not guilty on count 3.

Bruce Gall – Guilty on count 2; Not guilty on counts 3 and 4.

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7. Kevin Gall relies upon the following grounds of appeal against his conviction:

Ground 1 – Her Honour erred in failing to direct the jury regarding the appellant’s post offence conduct in the terms of consciousness of guilt, reasoning.

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Ground 1 - Her Honour erred in failing to direct the jury regarding the appellant’s post offence conduct in the terms of consciousness of guilt, reasoning.

76. Kevin Gall accepted that no such complaint had been made during the trial and that leave pursuant to r 4 of the Criminal Appeal Act 1912 was required. The applicant submitted that because this error had given rise to a miscarriage of justice, leave should be granted.

77. Kevin Gall submitted that this ground related to the evidence concerning:

(1) Disposal of the deceased’s body.

(2) The removal of the hard drive from the CCTV camera at the crime scene.

(3) Destruction of the cartridge cases.

(4) The destruction of the van used to transport the body of the deceased.

(5) The spray painting of the Ford Laser which Mr Fox drove to the Girraween premises.

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86. In other words, the rationale behind the need for a consciousness of guilt direction by a trial judge is that the particular conduct relied upon by the Crown, while being capable of allowing a legitimate inference of guilt, may also be readily explained by another innocent or less culpable motivation. When that rationale is kept in mind, a proper understanding of the issues which arose in this trial makes it clear that there was no need for a consciousness of guilt direction by her Honour and that no miscarriage of justice has occurred by her Honour not having done so.

87. Before her Honour commenced her summing up, there was a discussion with trial counsel as to its content. The overwhelming inference is that no counsel at trial considered that a consciousness of guilt direction was necessary, otherwise they would have raised the issue. It is trite to observe that not every case in which evidence of post offence conduct is adduced requires a consciousness of guilt direction. The direction is only required when it is necessary in order to ensure a fair trial in the light of the issues and evidence in the trial.

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90. The issue before the jury was the intention of Kevin Gall at the relevant time. There was no issue as to whether or not he had carried out the relevant act. On his case, the apparently sinister actions of shooting at both the deceased and Mr Fox had an innocent or less culpable explanation. The issue for the jury was whether the Crown had negated that less culpable explanation to the relevant standard, i.e. beyond reasonable doubt. Part of the Crown case to achieve that result was its reliance upon the post offence conduct. The issue was not whether a less culpable explanation for the post offence conduct was available – it was and it constituted the basis of Kevin Gall’s defence. The jury had to decide whether the Crown had excluded that less culpable explanation.

91. The difference between the cases of the Crown and Kevin Gall was stark. On the Crown case, he shot the deceased to remove an adversary. On Kevin Gall’s case, he did so out of fear of what might happen to his father and himself. An important part of the Crown case was the post offence conduct to establish Kevin Gall’s intention. When the issue before the jury was as clear as this, to have given a consciousness of guilt direction would have needlessly complicated the question which the jury had to decide. It would have involved a circularity of reasoning, i.e. the jury could only be satisfied as to consciousness of guilt if they were also satisfied that Kevin Gall had the intent necessary for murder.

92. It would involve the triumph of form over substance and an empty exercise in semantics to require a trial judge in the circumstances of this case to give a direction to the jury that the post offence conduct of Kevin Gall, while capable of giving rise to an inference of guilt of murder, was also capable of giving rise to a less serious or even innocent inference and for that direction to be couched in consciousness of guilt terminology. This is because that very issue was the fundamental question for the jury to decide. They were well aware of the competing issues as to intent as a result of the addresses by counsel and her Honour’s comprehensive summary of the competing cases in relation to which there has been no complaint. The evidence of Kevin Gall’s post offence conduct was simply part of the Crown’s case to rebut his contention that he had acted out of fear and in self-defence.

93. Kevin Gall’s submission that the evidence of his post offence conduct could not distinguish between a consciousness of guilt for murder or manslaughter is misconceived. At no time was it suggested by any counsel or her Honour to the jury that the post offence conduct could be used in this way or was capable by itself of establishing guilt of any particular offence. It was simply part of the Crown’s overall case to establish Kevin Gall’s intention at the relevant time and to establish the negative proposition beyond reasonable doubt that Kevin Gall did not personally believe that it was necessary for him to shoot at the deceased to defend his father and himself.

Ward JA, Beech-Jones and Fagan JJ

1. On 10 March 2014, following a trial in the Supreme Court before Fullerton J and a jury of twelve, the applicant (Paul Darren Mulvihill) was convicted of the murder on 16 July 2012 of his former lover, Rachelle Yeo. The applicant had pleaded not guilty to the sole count on the indictment, that of murder, and had raised no affirmative defences to the charge. His case, as to which he gave evidence before the jury, was that Ms Yeo’s death had been the result of an accident, the two fatal wounds (a neck wound severing her jugular vein and a penetrating wound to the heart, either of which would have been sufficient to kill her) having been inflicted by the deceased herself in the course of a struggle which had occurred in her apartment after an argument between them.

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Ground 7 – Flight as consciousness of guilt

7. The trial judge erred in her directions on consciousness of guilt relating to both “lies” and flight by not directing the jury that consciousness of guilt could relate to both murder and manslaughter.

219. Although ground 7, as framed, encompasses both lies and flight, at the hearing of the appeal the sole complaint pressed under this ground was in relation to the applicant’s post-offence conduct in leaving Ms Yeo’s unit (by jumping over the balcony) and apparently evading arrest. Where flight is relied on as evidencing a consciousness of guilt as part of a circumstantial case, it need not be established beyond reasonable doubt (Minniti v R (2006) 159 A Crim R 394; [2006] NSWCCA 30).

220. The jury must be directed as to the way it can use evidence of flight as consciousness of guilt in a similar way to the directions in relation to the use of lies as consciousness of guilt (see R v Cook [2004] NSWCCA 52 at [25]). However, evidence of flight may be so connected with the offence that it may be unnecessary to give a direction on consciousness of guilt (Ristevski v R [2007] NSWCCA 87 at [34]).

221. In R v Cook, Simpson J (as her Honour then was), with whom Ipp JA and Adams J agreed, referred (at [24]) to the conditions (derived from R v Lucas [1981] 1 QB 720, there in the context of lies, and adopted in the judgment of Clarke JA in R v Heyde (1990) 20 NSWLR 234) from which a jury may reasonably infer that an accused person has acted out of a consciousness of guilt, those being:

(i) that the lie is deliberate;

(ii) that it relates to a material issue;

(iii) that the motive for the lie is a realisation of guilt and a fear of the truth;

(iv) (where relevant) that it is shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is, by admission or by evidence from an independent witness.

222. In the case of flight, her Honour added a fifth condition, being that evidence of flight may be admitted where the jury may legitimately infer that the flight was occasioned by consciousness in the accused person of guilt – that is, of guilt of the offence with which he/she is charged (at [25]).

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225. Post-offence conduct may also be relevant to negative a defence of self-defence or provocation (see Gall v R [2015] NSWCCA 69 at [92]- [93]). In Gall, the appellant was convicted of a number of offences, including murder. The appellant admitted he had shot the deceased. The issue before the jury was the intention of the appellant at the time of the shooting and the relevant question was whether the Crown had negatived the appellant’s less culpable explanation for the shooting (i.e., that he was defending himself and his father out of genuine fear) to the relevant standard. On that issue, the Crown relied on the post offence conduct. Hoeben CJ at CL (with whom RA Hulme J and Davies J agreed) held (at [91]-[93]) that in those circumstances a consciousness of guilt direction would have involved circular reasoning…

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227. Where there is an alternative charge, an assessment must be made as to whether evidence of consciousness of guilt serves to prove one charge or the other (R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 at [40] - [42] , [64]-[68], [77]-[78], [81]-[87]). It will generally be for the jury to decide whether evidence of post-offence conduct is related to the crime charged or to some other culpable act (The Queen v Baden-Clay at [73], approving the decision of the Supreme Court of Canada in R v White [1998] 2 SCR 72). The issue is determined in light of the specific facts of the case, there being no “rigid prescriptive rules as to when and in what precise terms an Edwards-type direction [that the jury can take into account a lie only if they are satisfied that it reveals a knowledge of the offence or some aspect of it and that it was a deliberate lie told because the accused knew the truth of the matter would implicate him in the offence] should be given” (Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [15]).

At [229] and [230]

The applicant submits that the jury should not have been directed that post offence conduct could be used as evidence of consciousness of guilt of murder when there was an alternative charge of manslaughter to which it may also have been equally relevant (referring to SW v R [2013] NSWCCA 103 at [62]- [63]; Steer v R (2008) 191 A Crim R 435; [2008] NSWCCA 295 at [68]- [73] per Simpson J (as her Honour then was) and [76] per McCallum J).

The difficulty with this submission is that the passages in the summing up to which the applicant pointed (at [516]-[517]) were expressed in general terms; namely whether the jury could treat the post offence conduct as having no explanation other than to conceal his guilt and whether the conduct could be explained other than as reflecting a sense of guilt. They were equally applicable to consideration of the case left to the jury for manslaughter as to the charge of murder.