R v Smith[2021] QCA 105

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  The appellant was charged with one count of rape, one count of attempted rape and one count of unlawful assault occasioning bodily harm.  The sexual offences involved the same complainant, a 12-year-old girl.  He was also charged with two counts of stealing the property of a different complainant.  Finally, the appellant was also charged with one count of murder, the alleged victim being the mother of the rape complainant.  All these charges were joined on the same indictment.
2. [2]
   The deceased, to whom I shall refer as Mandy, was the mother of the rape complainant, to whom I shall refer as Helen.  Mandy lived with her two daughters and with two male housemates to whom I will refer as Bob and Kris.  The appellant was a friend of Mandy’s who, according to Helen’s evidence, had a sexual desire for her mother, whom he had repeatedly propositioned unsuccessfully.
3. [3]
   On the night of 25 August 2014, Mandy and her two daughters were ill with stomach complaints.  The appellant visited them and ended up staying the night.  Mandy and her daughters were sleeping on two adjoining mattresses placed on the floor of their lounge room.  The appellant joined Mandy on one of the mattresses and Helen and her sister lay on the other.  Bob slept in Helen’s bedroom and Kris slept in Helen’s brother’s bedroom.
4. [4]
   The following emerged from Helen’s evidence.
5. [5]
   During the night, Helen was woken by the sound of her mother and the appellant talking.  She went back to sleep.  Some time later, the appellant woke Helen and, pulling her up by the arms, took her into her mother’s bedroom.  There he pushed her down onto the bed and told her that she was “gonna become a woman”.  To Helen’s question how that was to happen, he answered with the word “sex”.  When she tried to scream, he placed his hand over her mouth and nose, stopping her breath and told her not to yell or he would “slit [her] throat”.  He took a knife-like implement from a bedside table and brandished it.  He lifted her shirt and groped her breasts.  He then removed her pants and underpants and spread open her legs and attempted to insert his penis into her vagina.  He was partially successful and made another attempt.  He straddled across her chest and presented his penis to her mouth and told her to suck it.  Helen refused.  He then got off her and walked around the room.  He found a pair of track pants and put them on.  He found some property belonging to Bob, and stole some of it.  The appellant then took Helen and pulled her down to the ground, where she suffered some carpet burns to her knees.  He put his arm around her head and his hand over her mouth and nose, again stopping her from breathing.  Then he released her.  Helen asked him if he was trying to kill her.  He said that he was trying to scare her.  He told her to go into Bob’s room and get his phone.  He threatened to kill everyone in the house if she refused.  Helen said that she would tell her mother what he had done and he replied, “okay you do that.”
6. [6]
   The appellant then left the premises, taking with him the things he had stolen and wearing the clothes he had taken.
7. [7]
   Helen immediately went to tell her mother what the appellant had done to her and found her dead.  Helen said that there was a “white sheet” that she saw “wrapped around” her mother’s neck.   It was “like a really thin sheet”.  It “wasn’t like the actual sheet material.  It’s like. Hospital sheets.”  The material “had holes in it”.  This sheet “had like knots, like every ten centimetres”.  She said “it was, it was not tight enough for me to like, it wasn’t tight enough for me to have to struggle to take it off her, I couldn’t just rip it off her.  But it was pretty tight for her to die.”  The sheet “looked pretty tight” and “the skin around [her face] looked a bit, like, out compared to the sheet around it.  It looked a bit tight.”  She agreed that it was “cutting into her skin.”  The sheet was secured by a knot that looked like “bunny ears”.  When she removed the sheet from her mother’s neck, she noticed red marks that had been left by the pressure of the knots.  Helen sketched a drawing showing the location of these marks on her mother’s neck.
8. [8]
   Helen woke her sister, Kris and Bob and then called 000.  By reference to the last television show that she could remember before falling asleep, and by reference to glimpses of watches or clocks during these events, Helen prepared a “timeline” of what happened that night.  She said that she fell asleep at about 11.30 pm.  She heard her mother and the appellant talking at about 1.21 am or 2.21 am (she noticed the minutes on a clock but not the hour, which she inferred).  The appellant dragged her into her mother’s bedroom at about 2.40 am and let her go at about 3.40 am.  Police and the ambulance arrived at about 4.00 am.  The timing of events is important, as will appear.
9. [9]
   Dr Milne, a forensic pathologist, was called to the scene that night and examined the body while it was still in the house and again when he performed an autopsy.  He noticed hypostasis, namely the darkening of the skin in the areas where gravity pulls down the blood still in the blood vessels.  He noticed “it was patchy on the neck”.  One of the ambulance attendants who gave evidence said that he saw a bruise on the neck but Dr Milne was of the opinion that this was hypostasis.  There was, however, a possible bruise to the right of Mandy’s forehead.  It was a “relatively mild bruise”.  Mandy was wearing a beaded necklace when she died and Dr Milne saw that these had left their impressions on her neck after death.  He found old puncture marks in Mandy’s arms.  She was an intravenous drug user.
10. [10]
    Dr Milne found no sign of any petechial haemorrhaging.  Petechiae are pinpoints of bleeding under the skin caused by the constriction of blood in small blood vessels as a result of strangulation or choking.  There was congestion in certain blood vessels in the head, that is to say, they were full of blood, but Dr Milne put that down to hypostasis.  Dr Milne found a single scratch-like mark, about 6 mm long, on the left side of Mandy’s neck.  Otherwise, there was no external injury to the head or neck.
11. [11]
    Dissection of the neck revealed a 10 mm by 2 mm bruise between one of the neck muscles and the larynx.  This was indicative of pressure having been applied to the neck.  The hyoid bone, a wishbone shaped bone located at the front top area of the neck, was not fractured.  This bone is commonly fractured as a result of strangulation.  However, Dr Milne found “some flexibility on the right side” of the hyoid bone.  Further examination showed “another area of bruising or haemorrhage that was five millimetres” in size.  The presence of bleeding “suggests there very well might’ve been a fracture there” which, however, Dr Milne could not identify with the naked eye.  Radiological examination did not reveal anything further about this artifact.  There were “microscopic injuries” to the larynx.  Using a diagram, Dr Milne showed where he had found bleeding on the thyroid cartilage in the neck as well as bleeding involving the cricoid cartilage, located at the base of the front of the neck, as well as the muscle and soft tissue.  He showed an area of fracture of the cartilage.  That is, there was bleeding on both sides of the thyroid cartilage, involving the cartilage itself, the muscle within the larynx and some of the supportive soft tissues.  There was bleeding on both sides of the cricoid cartilage involving, similarly, the muscle and the supportive tissue.  There was a “micro-fracture’ of this cartilage.  Dr Milne also found a band of bleeding in the thyrohyoid muscle, lying behind the larynx, that covered an area of 10 mm by 2 mm.  Photographs of these areas which showed the injuries were tendered.
12. [12]
    All of these internal injuries were located closely together and were consistent with the application of force to that area of the neck.
13. [13]
    Examination of other organs of the body offered no explanation for Mandy’s death.
14. [14]
    Blood tests revealed a quantity of drugs in Mandy’s system.  There were .03 milligrams per kilogram of methylamphetamine in the blood.  In Dr Milne’s opinion, any concentration below .09 milligrams per kilogram would not be likely to cause death.  There were .32 milligrams per kilogram of amitriptyline in the blood.  According to Dr Milne this was not a quantity that would be likely to cause death.  That would require a concentration of more than .5 milligrams per kilogram.  A concentration of Lasix, a diuretic, was found but this would not have caused death.
15. [15]
    In Dr Milne’s opinion Mandy’s death was caused by asphyxia.  Dr Milne would normally expect there to have been petechiae present but did not regard their absence as a reason to doubt that the cause of death was asphyxiation.  He gave reasons for holding that opinion.  The pressure of blood in the arteries, containing blood expelled from the heart, is greater than the pressure of blood in the veins, containing blood returning to the heart.  Consequently, more force is required to restrict the circulation of blood in the arteries than would be required to restrict the circulation of blood in the veins.  Dr Milne said that petechiae are caused when the force of strangulation results in a partial constriction of the more highly pressurised arteries, allowing blood still to be pumped into the head, but which results in the total, or nearly total, constriction of the lesser pressured veins, preventing the return of blood through the veins to return to the heart.  The resulting increase in the pressure of blood in the veins results in the rupture of small veins causing visible petechiae in those vessels.  However, if the force applied was strong enough to prevent arterial blood being pumped above the neck there would be no petechiae.  For this reason, in Dr Milne’s opinion, the absence of petechiae did not exclude strangulation as a mechanism of asphyxiation.  Moreover, if the mechanism of death had been by smothering, there would also be no petechiae.
16. [16]
    The absence of any fracture of the hyoid bone did not affect Dr Milne’s conclusion that the cause of death was asphyxia because if a broad ligature were used, such as a sheet, the dispersal of force by such an instrument would reduce the pressure upon the hyoid bone.  In such cases the hyoid bone would be less likely to be broken.  Dr Milne has frequently seen dead bodies which are the result of suicide by hanging from a sheet and, in his experience, in such cases the external injuries are often, as in this case, minimal.
17. [17]
    However, the internal injuries that Dr Milne discovered supported his conclusion that force had been applied to Mandy’s neck.  Dr Milne pointed to professional literature that supported his view.  He said that his conclusion would be supported if it were true, as Helen had said, Mandy was found with a sheet wrapped tightly around her neck and a pillow on her face.  In cross-examination Dr Milne said that a broad ligature would produce little or no marks externally but would still be capable of creating the type of injuries that he found, because the larynx can crack or fracture.
18. [18]
    His cross-examination included the following exchange:

“If it was established, that there was no ligature – this is before you wrote your report.  I’m – and there was no pillow on the face of the deceased, would you agree that your report might’ve been more likely to be undetermined? --- Yes.”

19. [19]
    In re-examination, however, there was this:

“Again you still maintain your opinion the cause of death was asphyxia? --- Yes.

Despite the absence of those particular features [petechiae etc]? --- Yes.

Why is that? --- Well, again – I think there’s probably been a dual mechanism of asphyxia.

So the combination of those two factors occurring at the same time? --- Yes.

And the absence of those particular findings does not concern you in terms of your determined cause of death? --- No.  I mean, the facts we have is there’s unexplained – otherwise-unexplained injuries to the neck and no other cause of death.”

20. [20]
    The defence called a pathologist, Dr Duflou.  His opinion was different.  Dr Duflou accepted that asphyxiation may have been the cause of death.  However, he was also not prepared to rule out drug overdose as a cause.  He was concerned about the absence of petechiae which, he said, were almost always present.  He was also concerned about the absence of any significant external neck injuries.  These are frequently caused by the victim’s own struggles to remove the strangling ligature or the killer’s hands.  However, he acknowledged the presence of a scratch noticed by Dr Milne.  In Dr Duflou’s opinion if a cloth of the kind described as a ‘hospital blanket’ had been used, he would have expected the fabric to leave significant marks on the neck.  He pointed to a study that had been conducted concerning eight cases of undisputed strangulation and observed that there were, in those eight cases, seven cases showing external ‘abnormalities’, soft tissue neck haemorrhaging as well as petechiae in all cases and a fracture of the hyoid bone in two cases.  He would have expected a ligature to have left a significant mark.  Suffocation would not leave petechiae but it typically results in mouth and lip injuries, and sometimes injuries to the nose.
21. [21]
    In Dr Duflou’s opinion, contrary to that of Dr Milne, the quantity of drugs in Mandy’s system was capable of causing an overdose because of the unpredictability of the effects of methylamphetamine.
22. [22]
    Dr Duflou accepted that the injuries referred to by Dr Milne were consistent with the application of force to the neck in the region of the Adam’s apple.  He was unable to offer any other explanation for these injuries.
23. [23]
    On the night of 25 August 2014, the appellant was making frequent use of his mobile phone to call or text acquaintances.  From 7 pm on that night until 9 minutes past 11 pm he was continually either making or receiving calls or texts.  Between 9 pm and 10 pm he made or received 46 calls or texts on his phone.  Between 10 pm and 9 minutes past 11 pm he made or received 45 more calls or texts.  His phone activity then stopped.  Video recordings from Manly train station showed the appellant there at 11 pm on 25 August 2014.  The recording shows him leaving the Norman Park station at 11.52 pm.
24. [24]
    The appellant’s phone communications started again at 00:50:14 when he sent a text message to a Ms Johanna Lane which read “please ms hana”, that being his nickname for her.  There was no reply.
25. [25]
    He then began to use Mandy’s phone.  At 0:56:58 and again at 0:56:59 he tried unsuccessfully to call a Mr Hyde.  Two minutes later he sent a text message to another one of his acquaintances, Ms Manton.  It read, “Fucking emergency Jakey”.  The name “Jakey” was his own nickname.  He again tried unsuccessfully to call Ms Manton and then, four seconds later he sent the same message to Mr Hyde.  Then he made 12 calls to Ms Manton, leaving voice messages on some of them.  Ms Manton later listened to the messages and recognised the appellant’s voice but could not understand what he was saying.  The appellant tried again to raise Mr Hyde but failed.
26. [26]
    At 01:09 he began to use Mandy’s Facebook account.  He sent a message to Ms Amy Brown.  Ms Brown did not know Mandy and did not know who was sending her a message.  In response to her message, “do I know you”, the appellant replied:

“Ir (sic) me jake

I need my bro

Help

Please”

27. [27]
    There followed an exchange during which Ms Brown tried to find out what was the trouble.  And then, between 01:22 and 01:24:

“Amy Brown

can u atleast (sic) give me an idea of whats up

Mandy

Drive to qld?

Wanted bad

Wat ya number pls

Amy Brown

Wtf jake! u shoulda got on plane last week fuckin hell!

[she stated her mobile number]

Mandy

But big trouble

Give me five

And don’t swear please it offends me”

28. [28]
    He then turned his attention to a Ms Noda, now using his own phone again.  Between 1:33:28 and 1:37:08 they had the following text exchanges:

“Appellant:  wherdd u

Ms Noda:  Where u

Appellant:  n park

Appellant:  big trub babe getting out of here in 5 tel ty i need help i no u wit him

Ms Noda:  A u serious”

29. [29]
    From 1:41:50 there was another hiatus in the appellant’s communications until 3:21:33 when he resumed trying to contact his friends.  According to Helen’s timeline, this was the period during which he committed the sexual offences against her.
30. [30]
    Much later on the morning of 26 August, the appellant phoned his friend, Tenille Mehrten.  He told her that he was in trouble and that he wanted a lift.  She was in Helensvale on the Gold Coast but drove up to Brisbane and collected him at 11.30 am at a Hungry Jack’s restaurant in Cannon Hill and drove him to the Gold Coast.  He was wearing the pants he had taken from Mandy’s house.  She gave the following evidence:

“And what did he say when you asked him what had happened?---He said he had done something stupid.

Did he say anything after he said he’d done something stupid?---Yes, he did.

What did he say, Ms Mehrten?---He said that he’d killed someone.  And I told him he was stupid and why would he do something like that.

Did he reply to that, when you asked him why – why he would do something like that?---He told me that they’d – they’d had it coming.  That they deserved it.

MR WALSH:  Sorry, I just didn’t hear the ---

MR McCARTHY:  “They had it coming and they deserved it”.

Did you say anything to Mr Smith after he said, “They had it coming and deserved it”?---I just remember telling him that he was stupid and why – why would he do that.

And did he say anything when you were asking him why he did that?---He told me that if I said anything that I’d be next.

You had your young son in the car with you at that time?---Yes, I did.

Did you ask him any more questions about what had taken place?---No.

Did he say anything about the person whom he’d killed?---No, he didn’t.  He did say oh, have you seen – haven’t you seen the news.  I don’t watch the news.  I never have watched the news.”

31. [31]
    She also said:

“I said to Jake what happened, why he’s stuck in Brisbane looking like a bum.  He said I’ve done something stupid.  I’ve killed someone.  Didn’t you see the news?  It’s all over the news.”

32. [32]
    In cross-examination Ms Mehrtens accepted that she did not tell police about these things when they first questioned her.  She only did so after police told her that she might be charged with being an accessory after the fact to murder.
33. [33]
    There was the following exchange in cross-examination:

“You didn’t ask him another thing?---Not that I can remember, no.

No.  Now – excuse me.  You told police, though, that you’d reflected upon the matter and you’d remembered?---That’s true.

That’s not true, is it?  The fact is that you were threatened by the police with charges so you came up with that story; correct?---Well, to some degree, yes.

Yeah.  You didn’t think it unusual in your statement, did you, that the words “I was told if I didn’t say this I would be charged with serious criminal offences” – you didn’t mention that in your statement, did you?---No, I didn’t.

So you just said on your own reflection.  That’s a lie, isn’t it?---I can’t be certain.

You can’t be certain?---I can’t.  I can’t remember all the way back four, five years ago.

All right.  Is it the case that the manner in which the police sold this to you, the second statement, was you were told “and you should be talking a little bit more” and things may go a little bit better for you; correct?---Yes.

And that’s why you gave a statement?---Yes.

As a mother of two children.  By the way, how old was your oldest child?---Twelve at the time.”

34. [34]
    On the morning of 27 August 2014, police went to an address at Gaven, on the Gold Coast and there they found the appellant hiding from them in bushes.  He rose, prepared to run and a police dog “utilise[d] his mouth to secure the person”.
35. [35]
    The appellant did not give evidence.  On the eleventh day of the trial, after all the evidence had been heard, the appellant decided to plead guilty to all of the charges except the charge of murder.  Accordingly, just before the lunch adjournment, the appellant was rearraigned on those charges in front of the jury and he then pleaded guilty to them.  After lunch defence counsel addressed the jury.  The prosecutor addressed the jury on the following morning and the learned trial judge then summed up the case.  The jury retired to consider its verdict at 3.54 pm and then resumed deliberations on the following day when they returned a guilty verdict.

The Grounds of Appeal

36. [36]
    The appellant originally advanced two grounds of appeal.  They were:

1. The verdict was against the evidence or weight of the evidence and as such was unsafe and unsatisfactory.
2. The learned trial judge erred in failing to discharge the jury on application by the defence during the course of the trial.

37. [37]
    At the hearing of the appeal, the appellant’s then counsel abandoned those grounds and raised a new ground as follows:

“The learned trial judge failed to adequately direct the jury in respect of the appellant’s consciousness of guilt evidenced by his flight.”

38. [38]
    After the Court had heard argument, but before judgment was delivered, the appellant wrote to the Court to say that the abandonment of his original grounds was done without his knowledge or consent and that he wished to reopen the hearing of the appeal in order to raise those grounds.  The Court gave leave to reopen the hearing.  At the resumed hearing Mr Jones of counsel, who appeared for the appellant pro bono with Ms Berry and Mr Boyd, reaffirmed the abandonment of the original two grounds but sought leave to raise two further grounds of appeal.  He maintained the appellant’s reliance on the misdirection ground.  Leave was not granted immediately but, instead, the Court heard argument on the two proposed new grounds which were as follows:

“2. The failure to sever the count of murder from the other counts charged by the indictment gave rise to a miscarriage of justice; and

3. The failure of the trial judge to direct the jury regarding the use that can be made of the evidence of the rape, attempted rape, assault occasioning bodily harm and two stealing counts gave rise to a miscarriage of justice.”

Misdirection ground

39. [39]
    His Honour reminded the jury about some evidence that the appellant might have been intoxicated.  This was not very strong evidence and came from Helen’s recollection that the appellant’s breath smelled of alcohol.  His Honour directed the jury that if they were satisfied that the appellant was so intoxicated as to be incapable of forming the necessary intent, they should acquit of murder.
40. [40]
    His Honour also directed the jury on accident and concluded:

“Unless the prosecution proves beyond a reasonable doubt that an ordinary person in the position of the defendant would reasonably have foreseen the death as a possible consequence of his actions or that the defendant intended or foresaw that, you must find him not guilty.”

41. [41]
    The learned trial judge gave the following direction concerning manslaughter:

“Now, I must also instruct you that by law, there is an alternative, and that is if you find that the defendant unlawfully killed the deceased, that is, if you answer the first two questions in the affirmative, but you do not find that he had the intent to kill or cause grievous bodily harm, if you are – if you find that you are satisfied beyond reasonable doubt only in respect of the first and second questions, then the defendant is guilty of the crime of manslaughter.  So if you are satisfied beyond reasonable doubt that he unlawfully killed [Mandy] but are not satisfied beyond reasonable doubt that he intended to kill her or cause grievous bodily harm, you will find him guilty of the alternative of manslaughter.”

42. [42]
    As described earlier, the appellant fled from the scene and, later, when police arrived at the premises where he was staying, he fled once more until captured.  The Crown relied upon that evidence of flight as evidence of guilt:

“The prosecution asks you to have regard to the fact that the defendant departed from Milsom Street, Norman Park, and ultimately hid behind the bench in the garden at Gaven after the events in question.  However, before you could use that as indicative of guilt, you would first have to find that the defendant did so because he knew he was guilty of the offence charged and not for any other reason.  You must remember that people do not always act rationally and that conduct of this sort can often be explained in other ways – for example, as a result of panic or fear or other reasons having nothing to do with the offence charged – that is, the offence of murder.  For example, given that the defendant has now pleaded guilty to having raped [Helen] on the evening in question, can his flight be explained by his having perpetrated the sexual assaults on a 12-year-old girl?  Can it be explained by him having seen the newsflashes?  Can it be explained by his involvement in the car accident?  All of these matters must be considered by you in deciding whether you can safely draw any inference from the fact of his departure and hiding.

Moreover, before the evidence of his departure can assist the prosecution, you would have to find not only that it was motivated by a consciousness of guilt of murder on his part – not only that it was motivated by a consciousness of guilt on his part, but also that what was in his mind was guilt of the offence charged – that is, murder – not of some other misconduct – that is, you must be satisfied that his flight was motivated by a consciousness of guilt of murder, not a consciousness of guilt of rape or stealing or the other offences to which he has pleaded guilty.  If and only if you reach the conclusion that there is no other explanation for his departure, such as panic or fear of wrongful accusation, you are entitled to use that finding as a circumstance pointing to the guilt of the defendant to be considered with all the other evidence in the case.  But, standing by itself, it could not prove guilt.”

43. [43]
    The learned trial judge did not draw the jury’s attention to the possibility, which was a real one, that the appellant had killed Mandy by choking her or suffocating her without having any intention of actually killing her.  The courts see frequent occurrences of men choking women with the intention of causing fear and pain but without any intention to kill.  Indeed, Helen said that he did this very thing to her.  It was material to draw the jury’s attention to the not unreasonable possibility that the appellant fled from the scene and tried to evade police because of his sense of culpability for the unlawful and unintentional killing of Mandy caused by his intentional choking of her.
44. [44]
    Had a direction been sought about the significance of an unlawful, but unintentional, killing as the genesis of the appellant’s consciousness of guilt, and had a redirection not been given, that decision would have involved an error of law and would have served as a ground of appeal.  However, a redirection was not sought and so the question is whether the failure to direct in these terms occasioned the appellant a miscarriage of justice.^[1]  Because of what is to be said about the misjoinder of counts on the indictment, it is not necessary to resolve this ground finally.

Misjoinder ground

45. [45]
    As has already been said, the count of murder was joined with counts of sexual offences, one count of assault occasioning bodily harm and two counts of stealing.  The appellant submits that the joinder was prejudicial to him and that there should have been a separate trial of the murder count.
46. [46]
    Sections 567(1) and (2) of the Criminal Code Act 1899 (Qld) (‘the Code’) provide:

3. “(1)
   Except as otherwise expressly provided, an indictment must charge 1 offence only and not 2 or more offences.

3. (2)
   Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.”

47. [47]
    It may be accepted that the counts in this indictment could have been regarded as being founded on the same facts.  That phrase ought not be narrowly construed.^[2]  The offences need not have arisen contemporaneously, nor involve precisely the same facts.  All that is necessary is for them to be traceable, either in time, place or circumstance, to common events.^[3]
48. [48]
    When evidence on one count is inadmissible on another count on the same indictment then, even if the counts have been properly joined under s 567, if the inadmissible evidence might improperly prejudice the accused and, for that reason, result in an unfair trial, there ought be separate trials.  In such a case the accused person can apply for separate trials under s 597A.  Even in cases in which there might be a risk of prejudice of that kind, an application for separate trials can be refused if grounds exist to favour joinder and the risk of prejudice can be alleviated by appropriate directions to the jury.  Cases in which sexual offences have been joined often give rise to a risk of improper prejudice of a kind that no direction to the jury is likely to give sufficient protection to an accused.^[4]
49. [49]
    In this case the alleged murder, rape, assault and stealing all arose in the course of the appellant’s actions over a period of a few hours in relation to the deceased woman and her daughter in their home.  No party argued on the appeal that the counts could not be joined.  The question was whether they ought nevertheless have been severed because of the risk that the jury might, despite being given appropriate directions, misuse the evidence admitted to prove the sexual offences, assault and stealing to prove the murder.  There was also the question whether the risk of moral prejudice against the appellant was incapable of being overcome by any directions.
50. [50]
    It is necessary to identify the evidence led to prove the sexual offences,^[5] assault and stealing which was said to be relevant to prove that the appellant murdered Mandy.  In order to do this, it is first necessary to identify the issues to which that evidence was to be directed.  The respondent submitted at the trial that the evidence went to prove the appellant’s state of knowledge after he left the room in which Mandy was lying.  The evidence was said to prove that the appellant then knew that Mandy was dead.
51. [51]
    Mr Logan Smith was one of the paramedics who attempted to treat Mandy.  His unchallenged and uncontradicted evidence was that he arrived at 3.46 am and that he declared Mandy dead at 3.47 am.  He observed “the early onset” of rigor mortis in her body.    According to Dr Milne, rigor mortis appears “usually, at least” an hour or two after death.  This would fix the latest time of death at 1.47 am.  CCTV footage recorded the appellant jogging towards the direction of Mandy’s home at 11.52 pm.  Helen’s evidence was necessary to place the appellant together with Mandy at the time of death.
52. [52]
    Helen’s evidence was that she fell asleep, alongside her mother and her sister, at about 11.30 pm.  She was woken by the sound of her mother and the appellant talking at either 1.21 am or 2.21 am.  She fixed this time because she remembered seeing the final digits “21” on her sister’s phone.  She did not see the first digit but inferred that it was either 1 or 2.  When she was with the appellant in her mother’s bedroom, Helen asked the appellant what time it was and he told her it was 3 am.  From this, by reference to her estimate of the time that had elapsed since she was taken by the appellant, she later calculated that he must have taken her away from the room in which her mother lay 20 minutes earlier, at about 2.40 am.  She said that when the appellant finally left, she picked up a mobile phone and saw that it was then 3.40 am.  Shortly afterwards, she found her mother’s lifeless body and called police.
53. [53]
    This evidence about time was not seriously challenged.  Helen’s evidence about the time largely accords approximately with other evidence although the 000 call was actually made at 3.35 am.  As has been said, the ambulance arrived at 3.46 am.  The attending paramedic, Mr Logan Smith, said that he had been dispatched at about 3.35 am.
54. [54]
    The admitted evidence about the appellant’s phone communications shows that he began making calls for help at 50 minutes past midnight and he began to use Mandy’s phone for this purpose at 56 minutes past midnight.
55. [55]
    It was the Crown case that the appellant killed Mandy and then he led Helen from the mattress in the living room and into her mother’s bedroom.  The Crown used evidence about the time of onset of rigor mortis to fix the time of death at a time when Helen’s evidence placed the appellant with Mandy.  Although there was evidence from Bob that the appellant was present at the house that night, it was Helen’s evidence that placed the appellant on the mattress with her mother at the relevant time and it was she who was able to account for his movements until her discovery that her mother was dead.  Further, it was Helen who was able, as part of the Crown case, to exclude the hypothetical presence of a third person who might have entered the house and killed Mandy.
56. [56]
    Apart from her direct evidence that he was there, Helen gave evidence that the appellant dressed himself in certain garments he took from the house.  Ms Mehrtens saw him in these clothes and later he abandoned them at the home of one of his acquaintances.  The clothes, on Helen’s evidence, therefore placed him at the home on that night.
57. [57]
    The Crown relied upon other evidence from which the appellant’s guilt of murder could be inferred.  First, there was the evidence about the manner in which the appellant took Helen away from her mother’s presence in order to rape her.  He did not do this in a stealthy manner but in a way that, the jury might think, would have risked waking the mother if she was alive.  Nor did the appellant appear to fear that Helen would disclose the rape to her mother.  As the prosecutor put it, it was unlikely that he would “visit these atrocities” upon the girl “unless he knew he could expect no interference from her mother”.
58. [58]
    The appellant’s capacity to form an intention remained in issue.  The Crown relied upon the appellant’s plea of guilty to the attempted rape and stealing as an admission that he had capacity to form an intention at the relevant time.  Helen’s evidence that he had stolen those things, when considered with evidence of his possession of those items at a later time, also proved his presence in the house.
59. [59]
    Helen’s evidence, together with the evidence of other witnesses with whom the appellant had contact that night, was also relied upon by the Crown as evidence of flight from which the appellant’s guilt of murder could be inferred.
60. [60]
    The prosecutor also relied heavily upon the appellant’s pleas of guilty and the evidence about the rape and the stealing to bolster the credibility of Helen on the footing that, by the pleas of guilty, the appellant had confirmed the truth of her account of the rape and, as a consequence, the jury could more readily accept her as a witness of truth on the remaining contested matters.
61. [61]
    Finally, the Crown’s case was that the three sets of offences, murder, rape and stealing, had to be considered together because the appellant’s acts that night constituted a course of behaviour that could only be understood as a whole.  As the prosecutor put it in his address to the jury, the alternative hypothesis was the highly unlikely one that Mandy “has coincidentally and spontaneously died at the same time Jacob Smith is raping her daughter and pillaging her home”.
62. [62]
    Evidence about the circumstances surrounding the commission of an offence is frequently tendered by the Crown upon the basis that, while appearing to be strictly irrelevant, it is relevant as background.  Many times this glib submission hides the real forensic purpose that the evidence is useful because it paints the accused in a bad light.  However, that the evidence might have such a tendency does not mean that it should not be admitted if it is actually relevant to proof of the offence as part of the circumstances.^[6]
63. [63]
    In O'Leary v The King^[7] the appellant had attacked and killed a man.  The prosecution led evidence that the appellant had been drinking earlier in the day and, in a drunken rage, had fought, or tried to fight, three other men.  He had also picked a fight with the deceased.  Latham CJ held that the evidence was admissible because it showed “the probability that [the appellant] would attack another man in a fit of drunken fury”^[8] and the case is usually cited in the context of the admissibility of similar fact evidence.^[9]  However, Rich J held that the evidence was admissible:

“… on the ground that it forms part of the circumstances of the crime, including the drunken condition of the prisoner, how he reached that condition, how long it continued and how, while in that condition, he was behaving”.^[10]

64. [64]
    Dixon J was of the same view:

“Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.  The prisoner’s generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide.”^[11]

65. [65]
    Williams J held that the evidence was not admissible to prove that the appellant was a violent man who was, therefore, likely to kill the deceased.  Rather, the evidence was admissible as:

“…evidence of certain significant incidents which took place in a series of connected occurrences which commenced with the drunken orgy on the sixth of July and concluded with Ballard’s death in the early morning of the seventh.  The murder occurred in in [sic] an isolated camp, so that it is highly probable that it was committed by one of the inhabitants.  The fact that the appellant alone of all these inhabitants was in the course of the orgy committing acts of violence and threatening violence must have in these circumstances probative value as making it logically probable that he was the man who assaulted Ballard.  It is therefore evidence of facts relevant to prove the main fact that is to say the identity of the assailant and as such, as indicated in the cases cited by my brother Dixon, is admissible on ordinary principles.”^[12]

66. [66]
    Sometimes evidence that would be excluded because it is extremely prejudicial must be tendered if the case is to bear any relationship to reality.  For example, in R v Alexanderson^[13] the accused were charged with a murder that they were alleged to have committed in a prison gym against a fellow prisoner.  The admission of evidence proving that the accused and deceased were prisoners when the deceased was killed, and that the killing happened in prison, was unavoidable if the case was to be presented intelligibly.
67. [67]
    The evidence about the rape was not actually relied upon to make sense of the other evidence in the way discussed in these authorities.  Rather, it was used by the prosecutor in the way discussed above.  Whether it was permissible to use it in that way was not the subject of any argument at the trial.  No objection was taken to the evidence and at the trial the prosecutor made only brief submissions about its relevance.  Defence counsel said nothing at all about it.  More must be said about this in due course.
68. [68]
    The issues of fact to which the contested evidence is directed is important for two reasons.  First, the relevance of the evidence cannot be determined unless the issues are first identified with precision.^[14]  Second, if the evidence is prejudicial, in that it may impinge on the fairness of the trial, the identification of the issues is essential to a consideration of the cogency of the evidence.^[15]  The cogency of the evidence depends upon the connexion between the facts which that evidence proves directly and the fact which is said to be proved inferentially from them.^[16]
69. [69]
    Nobody at the trial undertook these tasks properly.  The prosecutor’s reliance upon the evidence to bolster Helen’s credit can be put to one side.  A party cannot lead evidence as part of its case simply to support the credibility of one of its witnesses.  This rule does not necessarily preclude the use of evidence in this way if it was relevant for some other reason.
70. [70]
    The purpose of the evidence was identified at the trial twice.  First, it was said that it proved that, at the time he was raping Helen, the appellant already knew that her mother was dead.  Second, the prosecutor made the following submission to the jury about how the evidence could be used to prove guilt:

“It’s from what you determine in this trial is the factual matrix that you have accepted, and it’s against that background, the whole picture, not little parts of the picture – Occam’s razor, putting it together, the simplest explanation is the most likely one, because, ladies and gentlemen, in this case, what you have to do is to say [Mandy] has coincidentally and spontaneously died at the same time Jacob Smith is raping her daughter and pillaging her home, that [Mandy], despite taking both methylamphetamine and amitriptyline for months, has coincidentally died at the time Jacob Smith has attended her home and raped her daughter.  Now, I’m not going to ask you to suspend belief.

You are left then, ladies and gentlemen, to apply your common sense to the whole of the evidence.  One of those aspects, as I say in my submission, is the remarkable improbability of coincidental death in this case.”

71. [71]
    Proof that the appellant knew that Mandy was dead when he raped Helen is merely one step in reasoning to guilt but the other steps were never articulated.  Possibly the logic was this.  When he took Helen away from her bedding, in the manner in which she described, the appellant knew that Mandy would not interfere.  He knew this because he knew her mother was dead.  The appellant could only have known that Mandy was dead because he had killed her.
72. [72]
    The fallacy in that argument, if that was indeed the implicit argument, obviously lies in the use of the word “only”.  There were drugs in Mandy’s body when she died.  These were methylamphetamine, and cannabis, as well as amitriptyline.  Dr Duflou said that the effect of methylamphetamine was unpredictable.  He said that a person might use the drug “50 times in a row” with negligible effects on the body but might die on the fifty-first occasion.  Amitriptyline is a prescription anti-depressant and the level of the drug, together with the concomitant product of the body’s breakdown of the drug, implied that Mandy had taken a dose “at a level higher than what you generally would expect in a patient on that medication”.  Dr Duflou described the dose as “supratherapeutic”.  One of the effects of that drug is drowsiness and it can also cause abnormal heart rhythm.  Methylamphetamine can also have those effects.  He regarded it as a “reasonable possibility” that Mandy “died of exposure to those two drugs and the effects of those drugs causing an overdose in this case”.
73. [73]
    It follows that there were three other possibilities to explain why the appellant might have known that Mandy was unlikely to be able to protect her daughter.  The first is that drugs had rendered her asleep or unconscious.  The second is that drugs killed her.  The third is that the appellant had killed Mandy unintentionally.  The existence of these other possibilities had ramifications that are discussed below.
74. [74]
    The second use made of the evidence was to assert that the rape made it highly improbable that Mandy died of natural causes because that conclusion would involve accepting the coincidence of the rape and of a death that the appellant had not caused.  This was an argument that invited the jury to conclude that the appellant murdered Mandy because he afterward raped her daughter.  It is an out and out appeal to propensity reasoning.  Not only was it impermissible to invite the jury to reason this way but the jury should have been instructed not to do so.
75. [75]
    If it is assumed that the evidence about the rape was relevant to proving the appellant’s state of knowledge about Mandy’s condition when he took Helen into the bedroom, then the question becomes whether the evidence should have been excluded because of the risk of prejudice.
76. [76]
    It is a general principle that, in a criminal trial, evidence of commission of offences other than the offence charged is prima facie inadmissible because such evidence has a tendency to erode the presumption of innocence because it may wrongly be regarded by the jury as being more probative of the accused’s guilt than it deserves to be.^[17]  The fundamental importance of ensuring the fairness of the trial for a particular offence requires that provisional paramountcy be given to the inherent tendency of such evidence to prejudice an accused person.  For this reason, the admission of such evidence is the exception rather than the rule.^[18]  The occasion for the application of this principle most frequently arises when so-called similar fact evidence is sought to be tendered, but the principle applies whenever the Crown seeks to adduce evidence of the commission of offences other than that with which the accused has been charged.
77. [77]
    The application of the principle requires a balancing of the probative force of the evidence to prove an issue against the potential prejudicial effect of its admission.  The prosecution must, as the first step in this process, identify the issue to which the evidence is directed and then, as the second step, identify with precision the fact sought to be proved directly by the contested evidence.  It must then demonstrate how proof of that fact is said to lead to proof of a fact in issue.^[19]  In this case, as has been seen, the prosecutor identified the fact which the evidence was led to prove, namely that the appellant knew that Mandy was dead.  That was actually only an inference to be drawn from the evidence which went to prove the appellant’s seeming lack of concern about the possibility of the mother’s interference with his intended rape.
78. [78]
    Because the admission of prejudicial evidence is exceptional, evidence must not be merely relevant; it must possess a strong degree of probative force.^[20]  It must have “a really material bearing on the actual issues to be decided”.^[21]
79. [79]
    In its outline of argument on this appeal, the respondent submitted that the evidence was relevant for the following reasons:

2. “(a)
   Render the entire narrative of events intelligible, for example that no one heard or saw the sexual offences and stealing and hence no one hearing or seeing the murder and [Helen] failing to raise the alarm earlier were plausible.

2. (b)
   Demonstrating Mr Smith’s ability to form specific intentions despite intoxication.

3. (c)
   Support the interpretation of statements made by the appellant to others by text or Facebook message to be temporally related to killing [Mandy].

4. (d)
   Demonstrate the circumstances bespoke [sic] confidence in offending, particularly against [Helen], because he knew [Mandy] was dead, culminating in his “go on” retort.

5. (e)
   Permit a true assessment of the credibility and reliability of the re-count of [Helen] of the events relevant to the assessment of the culpability for the offence of murder.

6. (f)
   Draw, as the only rational inference, that [Mandy’s] death was the result of deliberate actions of the appellant and not misadventure.”

80. [80]
    Cases are commonly conducted upon the basis that the demands of a fair trial require the excision of part of the story.  In this case a period of an hour on the night would have been obscure if the evidence about the rape was excluded.  That period began when the appellant woke Helen and ended with his dressing and leaving in fresh clothing.  Having regard to the way in which the evidence as a whole actually emerges at a trial in such a case, it might be necessary to warn the jury not to speculate about the lack of evidence concerning that period but its omission would not have rendered the narrative concerning the murder unintelligible.
81. [81]
    As to subparagraph (b), the submission that the evidence helped to prove that the killing was intentional is unpersuasive.  First, intention is not an element of the offence of rape.  Second, that the appellant could form the requisite intention to support a conviction for attempted rape or stealing says little about his state of mind when he killed Mandy (if the jury accepted that he killed her), as he committed those offences at a later time.  In addition, the Crown case on intention had other parts.  In his closing address the prosecutor submitted that intentional killing could be inferred from the cause of death itself, namely a strangulation evidenced by the injuries that must have taken several minutes.  Further, the appellant’s state of mind could also be inferred from his capacity to formulate coherent text messages at about the time of the killing.
82. [82]
    As to subparagraph (c), the evidence of the rape was irrelevant to the significance of the text messages.  Whether or not the appellant raped Helen, his text messages would have the same incriminating force having regard to their content and timing.
83. [83]
    As to subparagraph (d), it may be accepted that the appellant’s actions in relation to the rape and stealing offences raised an inference that the appellant believed that Mandy would not be able to prevent him from raping her daughter.  The jury might have inferred that his belief was based upon his knowledge that Mandy was dead, although that was not the only available inference, as has been said.  It would also have been necessary for the jury to infer that the appellant knew that Mandy was dead because he had intentionally killed her.  This raised for consideration whether the evidence raised another reasonable hypothesis which was consistent with innocence.  The other possibilities were that the appellant’s confidence was due to his belief that Mandy was in a deep sleep or that she was unconscious by reason of the drugs that she had taken or that the appellant knew that Mandy had died from a drug overdose, as Dr Duflou suggested, or that he had killed her unintentionally.  In each case he was taking advantage of her inability to protect her daughter.
84. [84]
    As to subparagraph (e), while the prosecutor relied upon the guilty pleas in order to bolster Helen’s credit, the evidence could not have been admitted if that was its only purpose and could not have supported its admission.  Further, an accused’s failure to contest facts that are not contentious is not necessarily supportive of the credit of a witness who gives evidence about them.^[22]
85. [85]
    As to subparagraph (f), it is correct that the Crown’s case on murder was circumstantial.  However, that the fact that the appellant raped Helen could not prove that he had killed or murdered her mother except by an impermissible recourse to a criminal proclivity.
86. [86]
    These asserted bases for the admission of the evidence on the other counts make it possible to make a judgment about its cogency.  The evidence about the rape is distinct from the evidence about the stealing although these sets of events were connected.  As to the former, as proof of a capacity to form an intention to kill, the evidence of rape was worthless.  It was equally worthless as evidence of intention to kill.  As evidence from which it could be inferred that the appellant knew that Mandy was dead, the evidence was not cogent having regard to the other available inferences.  As evidence of propensity to kill and as evidence going to credit it was inadmissible.
87. [87]
    The evidence about the stealing and the clothing was relevant to prove the appellant’s presence in the house and could have been led without reference to the rape.
88. [88]
    The risk of prejudice from the evidence about the rape was very high.  The word “prejudice” in this context refers to the risk that the jury might use the evidence in an impermissible way.  One such misuse would involve treating the appellant as a man who probably murdered Mandy because he was the kind of man who could rape a child in her mother’s house.  There was also the risk of prejudice strictly so-called: the tendency to find a person guilty because the person is morally disgusting, that is to say, the risk of actual prejudice against the appellant.
89. [89]
    The evidence about the stealing was directly relevant to the murder count and the risk arising from it was not so great that it could not have been removed by an adequate direction.
90. [90]
    For these reasons the rape counts should have been tried separately from the murder count.

Failure to give directions

91. [91]
    If I am wrong about this then, in any case, the trial miscarried because no directions were given about how the evidence on the rape, assault and stealing counts could be used.
92. [92]
    The provision of adequate directions to the jury is fundamental to a fair trial.  Indeed, s 620 of the Code imposes a statutory duty upon a trial judge to instruct the jury as to the law applicable to the case.  In many cases a judge will have to instruct a jury how not to reason to a conviction and how evidence must not be used.  In cases in which several counts have been joined on the same indictment or when several accused are tried jointly this will always be so.  It is the duty of the trial judge in such cases to separate for the jury’s consideration the evidence relevant to each particular count and, equally importantly, the evidence that is not relevant to each particular count.

93. [93]
    In Ziems v Prothonotary of Supreme Court (NSW),^[23] Kitto J described the relationship between Bench and Bar as one of “intimate collaboration”.^[24]  On the occasion of his appointment to the High Court, Sir Owen Dixon said that the Bar “formed part of the use and the service of the Crown in the administration of justice.”^[25]  In Ziems^[26] his Honour said “the Bar is a body exercising a unique but indispensable function in the administration of justice”.  Because of this, barristers have a duty to identify and define the matters that are essential for decision and to catalogue for the judge all the necessary factual and legal materials pertaining to those matters^[27] and trial judges rely heavily upon counsel to do so when that is necessary for a fair trial.

94. [94]
    In a case like this one, it was the duty of both counsel to assist the learned trial judge by making submissions about the cross-admissibility of the evidence and about the instructions that the judge should give the jury about the evidence.  No such assistance was given.  Apart from the direction that the jury ought not use the guilty pleas themselves as evidence of guilt of murder, and a direction that the evidence of preliminary complaint was irrelevant to the murder count, the jury was given no instructions about cross-admissibility or about how the evidence could be used.^[28]
95. [95]
    Experienced and prudent judges often review a proceeding at a convenient time before the day the trial is to begin in order to give the parties an opportunity to draw the judge’s attention to obvious matters like those which arose in this case and which require management.  Pre-trial management is desirable for many criminal cases.  This was a case in which three counts were charged which involved three different offences and three different victims.  Joinder and cross-admissibility had to be considered at a time before the evidence was led.  Such evidence as was ruled admissible had to be considered as to any limitations attaching to its use.  Both prosecution and defence ought to be astute to consider whether a case merits a pre-trial review and, in a case like this one, initiate a review even if the Court does not, of its own motion, require it.
96. [96]
    In this case, the Crown formulated and conducted its case on the footing, it seems, that all of the evidence admitted on the rape, assault and stealing counts was relevant to prove the murder case.  There is no evidence that the implications of such an approach were ever thought through.  Assuming all of the evidence to be admissible, the jury had to be directed how that was so and about how the evidence could not be used.  A single striking example, out of a possible long catalogue, will demonstrate why this was necessary in the present case.  In a trial in which the prosecution set out to prove that the appellant had strangled Mandy, part of Helen’s evidence was the following:^[29]

“ … he like, pulled me down to the ground whilst strangling me.  And I was like trying to fight him because I couldn’t breathe …. Like he come up behind me…. Put his arm around my throat like that … like choking and like I really couldn’t breathe …”  (emphasis added)

97. [97]
    Yet no submissions were made to the learned trial judge by either counsel about this highly prejudicial evidence.  How was it relevant?  How could it be used?  How should it not be used?  Of course, the simple answer was that this evidence was utterly irrelevant and also highly prejudicial but, because neither counsel turned their mind to the proper use of evidence, they did not give the necessary assistance to the judge.
98. [98]
    As a result, there was a real risk that the jury misused the evidence led to prove the rape, assault and stealing counts.
99. [99]
    For these reasons the conviction for murder should be set aside and there should be a retrial.

100. [100]
     PHILIPPIDES JA:  I have had the considerable advantage of reading the reasons for judgment of Sofronoff P and McMurdo JA.  I agree that the appeal should be allowed on the basis of the error raised in ground 1 of the amended notice of appeal and that the appellant should be retried on the charge of murder.  Given the comprehensive outline of the evidence set out in the reasons of Sofronoff P, I am able to state my reasons briefly.
101. [101]
     Ground 1 concerns whether there was a miscarriage of justice as a result of error in failing to adequately direct as to the appellant’s consciousness of guilt evidenced by his flight.  In directing on the inferences to be drawn from the evidence of the appellant’s flight, the trial judge directed the jury to consider whether that conduct could be understood as evidence of a consciousness of offending other than murder, such as the offence of rape to which the appellant had pleaded guilty.  The crux of the submission on the appeal is that the trial judge erred in failing to direct the jury to consider also whether the genesis of the appellant’s flight was a consciousness of having unintentionally killed the deceased; that is of the alternate offence to murder, namely manslaughter.  That that proposition was not raised by defence counsel in his address to the jury, may be understood in terms of not wishing to cut across the main thrust of the defence submission that the genesis of the appellant’s flight was his sexual offending.  No redirection was sought so the question is whether a miscarriage of justice resulted from the deficiency in directions as to flight.
102. [102]
     The hypothesis of an unintentional killing of the deceased was raised as a hypothesis on the evidence of the forensic expert Dr Duflou called by the appellant.  That expert’s primary position was that the cause of death could not be determined.  He was unable to adopt the conclusion reached by the prosecution’s forensic expert, Dr Milne, who, having ruled out the role of drugs in the cause of death, opined that the cause of death was asphyxiation.  Dr Milne’s view was that, due to the absence of petechial haemorrhages, the mechanism of asphyxiation was not strangulation alone but a combination of strangulation and smothering and that death from asphyxia would take a continuous period of five minutes of lack of oxygen.  Dr Duflou did not dispute that time estimate.  He also opined that death from strangulation alone would take at least 10 to 20 minutes of repeated acts of compression of the neck.  But along with Dr Milne, he ruled that out as the mechanism of death due to the absence of petechial haemorrhages.  However, Dr Duflou raised as a possible cause of death a combination of drugs and asphyxia from compression of the neck resulting in cardiac arrhythmia (although he indicated that even a period of 10 to 20 seconds of compression of the neck sufficient to cause a lapse of consciousness would typically result in grazes and other marks to the sides of the neck).
103. [103]
     The approach taken by the trial judge was to deal with the hypothesis raised by Dr Duflou as going to the issue of whether the killing was unlawful, on the premise of the jury being satisfied that the appellant had killed the deceased.  And, in that regard, the trial judge directed the jury to consider the hypothesis in relation to the issue of accident which was a complete defence; that is whether death was intended and foreseeable.  His Honour then went on to direct the jury that, even if accident did not apply, they were required to consider if the death was unintended and in that context explained the elements of manslaughter and its availability as an alternative to murder.  The present grounds of appeal do not raise whether there was error in failing to again outline in detail the hypothesis of unintentional killing raised by Dr Duflou when dealing with the alternate offence of manslaughter but rather whether the post offence conduct of flight was the subject of adequate direction.
104. [104]
     On that specific issue, I agree with McMurdo JA that there was an error in failing to direct the jury as to the inference to be drawn from the appellant’s flight in terms of a consciousness of guilt by the appellant of having unintentionally killed the deceased.  As McMurdo JA states, given the evidence that the appellant said that he had killed someone, the evidence of post offence conduct of flight was particularly damaging without a direction that that conduct was also to be considered in the context of the hypothesis of an unintentional killing; that is, as reflecting a consciousness of having unintentionally killed the deceased.  That was a matter which it was incumbent on the trial judge to direct, having already left the offence of manslaughter to be considered by the jury.  Failure to give that direction resulted in a miscarriage of justice.
105. [105]
     Given the view I have expressed as to ground 1, it is unnecessary for me to consider the other grounds of appeal.

106. [106]
     McMURDO JA:  I agree with Sofronoff P that the appeal should be allowed, and that the appellant should be retried on the charge of murder.  In essence, my reasons for that conclusion are that the jury was not given proper directions as to the hypothesis of an unintentional killing by the appellant and as to the risk of the misuse of the fact of the appellant’s offences against the deceased’s daughter.

The unintentional killing hypothesis

107. [107]
     In the way in which the defence case was conducted, the principal issue at the trial was whether the deceased died through some form of asphyxiation, or instead as a consequence of her own voluntary drug use.  In his directions to the jury, the trial judge described this as “one of the central questions”, for which:

“The proper approach is to understand that the Prosecution case depends upon you, the jury, accepting that the evidence of the Prosecution’s expert witness was such as to lead you to be able to conclude beyond reasonable doubt that Mr Smith killed the deceased, despite the evidence of the defendant’s witness.”

108. [108]
     The prosecution’s expert witness was Dr Milne; the defendant’s witness was Professor Duflou.
109. [109]
     On the evidence, however, there was another possibility which was raised, namely that the death was caused by a combination of strangulation and toxicological causes.  That possibility had been suggested by Professor Duflou in a report (which was not in evidence), and it was the first matter upon which he was cross-examined by the prosecutor.
110. [110]
     Professor Duflou testified that stimulation of nerves in the sides of the neck, known as the vagus nerves, can affect the control mechanism which they apply to heartbeat, heart rate, blood pressure, and other things relating to heart function.  Stimulation of those nerves, he said, can cause an arrhythmia (an abnormal rhythm of the heart).
111. [111]
     His evidence continued:

“[S]o stimulants like methamphetamine and, for that matter, drugs like amitriptyline, can predispose you to arrhythmia. So what that means is you may not necessarily get an arrhythmia on its own but if you do something else you have a higher chance of an arrhythmia developing. Those arrhythmias can either be dangerous or not dangerous. That seems to be fairly random as to which of the two it can become. As I’ve said, when there is stimulation of the nerves at the side of the neck, the vagus nerve, for example, blood pressure, by rubbing against them and various other forms, that together with the pre-existing potential for arrhythmia can be multiplied and you can have an arrhythmia where otherwise you would not expect one. So in a situation like that, the asphyxia, together with the effects of the drugs on the heart, could potentially cause death as well.

…

The methamphetamine certainly increases your heart rate, increases your blood pressure, so increases the amount of work required by the heart. Your heart has just got to work harder by being administered this drug. It’s very similar to adrenaline, in fact. So everything just goes faster, works faster, more pressure. Now, the nerves in the side of the neck, when they are stimulated, you can have the same effect as well of further release of the substances, and that can – it can sometimes speed up the heart, can sometimes slow down the heart. If it slows it down and you’ve got excess stimulation of the heart already with a potential for it to develop arrhythmia, you can have the paradox of – by slowing it down that you can get a worse arrhythmia develop.

And as a possible postulated cause of death, the pathology discovered in this case wouldn’t be inconsistent with that because, as you said, when you have a cardiac arrhythmia and you die of cardiac arrhythmia the heart will look normal to a pathologist?---Yes, I agree with that.”

112. [112]
     A significant factor, at least for Professor Duflou, was the absence of petechial haemorrhages.  In his evidence in chief, he said that in a case of death by manual strangulation, or by the use of ligature, petechial haemorrhages are almost inevitably present.  He explained that it was by the repeated compression of the neck that petechial haemorrhages are caused.  A person who has their neck compressed for about 10 to 20 seconds will probably lose consciousness, but if the compression then ceases, the blood goes back to the brain and the person awakes.  To cause death by strangulation, he said, requires neck compression for about 10 minutes, or in some circumstances up to 20 minutes.  He said that it would be “quite unusual” for an assailant not to release their hands or a ligature after the victim loses consciousness and appears lifeless, and it is by repeated acts of compression, necessary in those circumstances for death to occur, that petechial haemorrhages are “almost inevitable”.
113. [113]
     Professor Duflou gave this evidence, as to the results of the autopsy:

“Now, what do you say about the autopsy evidence for manual neck compression? --- … [T]here’s a single abrasion that we’ve talked about, the six millimetre abrasion on the neck. There are some subtle abnormalities within the larynx or the voice box. There is no petechial haemorrhage. There are minor injuries only to the surface of the neck and I certainly would not, on the basis of those findings at autopsy, consider manual strangulation a likelihood. Yeah. You know, it – it is possible that there may have been a degree of pressure on the neck, but to the extent of having caused death I don’t think that evidence is in the autopsy.

All right. And what do you say in relation to the situation that this was a case of ligature strangulation?---Again, the problem with this is the absence of external injury to the neck with the exception of that six millimetre abrasion, the absence of a band-like injury to the neck caused by the ligature as it’s compression around the neck, absence of other injuries around the neck and, critically, the absence of petechial haemorrhages again.

What do you say about a forearm hold as a possible mechanism?---Forearm holds are chokeholds, bar holds, variations of that. Unless applied with a good level of expertise, in other words, that there’s been training on how to do it, can often end up with quite severe damage to the larynx and in those cases, in any case, you would firstly expect, again, to see petechial haemorrhages, and then the second thing that you see is as the person is struggling to remove the – the arm from around her neck – is you see scratch marks on the neck typically and you very commonly see injuries to the assailant at the same time. ”

114. [114]
     All of this evidence raised a real possibility, rather than merely a theoretical one, that force was applied to the deceased’s neck, perhaps for enough time to cause her to lose consciousness, but for an insufficient time to cause death absent the potential effects of the drugs which were found in her body.  The evidence explained the way in which such a limited force, with the presence of the drugs, could have caused death in this case.  And this possibility provided another explanation for the absence of petechial haemorrhaging and the other signs which are commonly found in cases of death by asphyxiation.
115. [115]
     Defence counsel did not invite the jury to consider this hypothesis.  His forensic choice was to avoid a suggestion that the appellant had strangled or suffocated the deceased, even for a very short time.  Nevertheless, the trial judge was obliged to identify that hypothesis, and to explain its potential consequences for the outcome, in his directions to the jury.
116. [116]
     His Honour did refer to it, but only in directing the jury on the possible operation of s 23(1)(b) of the Criminal Code.  Unfortunately, his Honour did not explain its significance to the question of whether, if the appellant unlawfully killed the deceased, he did so intending to cause death or grievous bodily harm.
117. [117]
     The trial judge referred the jury to this hypothesis in these passages:

“Under cross-examination, Dr Duflou was asked about the possibility of a combination of the factors, and the possibility that a person with methylamphetamine and possibly amitriptyline in their system who had force applied to their neck would be more susceptible to cardiac arrhythmia and he acknowledged this as likely. Now, that little passage of evidence that I have just referred you to, ladies and gentlemen, I will also be referring to you later when I come to sum up to you on question of accident.

…

[T]he prosecution must prove that the defendant intended that [the deceased’s] death should occur or foresaw it as a possible consequence or that an ordinary person in his position would reasonably have foreseen the event as a possible consequence. In considering whether the defendant did foresee it or an ordinary person would have, you should focus on whether her death was foreseeable as something which could happen, disregarding possibilities that are no more than remote or speculative. If you have come to the conclusion that Mr Smith killed the deceased, it may be that your consideration of the evidence, particularly that evidence of Dr Duflou that I highlighted to you specifically a few minutes ago, raises for your consideration the possibility that neither the defendant nor an ordinary person could reasonably have foreseen that [the deceased’s] death would occur.

If the defendant did not intend or foresee the death of [the deceased] as a possible consequence of his actions and if an ordinary person in the position of the defendant would not have foreseen that as a possible consequence of those actions, then the defendant would be excused by law and you would have to find him not guilty. Remember, it is not for the defendant to prove anything. Unless the prosecution proves beyond a reasonable doubt that an ordinary person in the position of the defendant would reasonably have foreseen the death as a possible consequence of his actions or that the defendant intended or foresaw that, you must find him not guilty.”

118. [118]
     His Honour then proceeded to direct the jury, as to the requisite intention of the appellant, as follows:

“If, however, you are satisfied beyond reasonable doubt of the first two elements, that is, you are satisfied that it was an unlawful killing, you must then turn to consider the third question, which is whether the prosecution has proved beyond reasonable doubt that at the time of the killing, Mr Smith intended either to kill [the deceased] or to cause her some grievous bodily harm. It is, of course, a matter for you, ladies and gentlemen, but if you have accepted that the defendant killed [the deceased] by the mechanisms suggested by Dr Milne, particularly a combination of strangling and smothering, you might consider that these mechanisms of themselves are sufficient for you to infer the necessary intent; that, as I say, is completely a matter for you.”

119. [119]
     His Honour did not explain the relevance of that unintentional killing hypothesis to the issue of intention.  It was one thing to say a repeated strangulation, over a period of 10 to 20 minutes, could prove an intention to kill or do grievous bodily harm.  It was another to conclude that this intention should be inferred from an act which may have lasted for only 10 seconds or so.  As the President has observed in his judgment, cases of strangulation, not intended to cause death, are not uncommon.  Since 2016^[30] (after the events in this case took place) acts of choking, suffocation, or strangulation in a domestic setting have been the subject of a specific offence under s 315A of the Code.  Indeed the evidence of the deceased’s daughter was that after she had been raped by the appellant, he was “strangling her”, so that she could not breathe, and he told her that he was just trying to scare her.  At one point in her evidence, she said that this had caused her to black out.
120. [120]
     The trial judge went on to direct the jury as to the use which they might make of the appellant’s consumption of alcohol or drugs on the night, in assessing his capacity to form the requisite intent.  That evidence did not provide significant support for an argument in his favour on the issue of intention, although his Honour was not wrong to direct the jury about it as he did.  However the direction about intoxication further obscured the relevance of the unintentional killing hypothesis to the jury’s consideration of the question of intention.
121. [121]
     The problem was further compounded by the directions which the jury were given as to the use which could made the appellant’s flight.  In that respect, his Honour said this to the jury:

“Now let me turn to another topic. The prosecution asks you to have regard to the fact that the defendant departed from [the deceased’s house] and ultimately hid behind the bench in the garden at Gaven after the events in question. However, before you could use that as indicative of guilt, you would first have to find that the defendant did so because he knew he was guilty of the offence charged and not for any other reason. You must remember that people do not always act rationally and that conduct of this sort can often be explained in other ways – for example, as a result of panic or fear or other reasons having nothing to do with the offence charged – that is, the offence of murder. For example, given that the defendant has now pleaded guilty to having raped [the deceased’s daughter] on the evening in question, can his flight be explained by his having perpetrated the sexual assaults on a 12-year-old girl? Can it be explained by him having seen the newsflashes? Can it be explained by his involvement in the car accident? All of these matters must be considered by you in deciding whether you can safely draw any inference from the fact of his departure and hiding.

Moreover, before the evidence of his departure can assist the prosecution, you would have to find not only that it was motivated by a consciousness of guilt of murder on his part – not only that it was motivated by a consciousness of guilt on his part, but also that what was in his mind was guilt of the offence charged – that is, murder – not of some other misconduct – that is, you must be satisfied that his flight was motivated by a consciousness of guilt of murder, not a consciousness of guilt of rape or stealing or the other offences to which he has pleaded guilty. If and only if you reach the conclusion that there is no other explanation for his departure, such as panic or fear of wrongful accusation, you are entitled to use that finding as a circumstance pointing to the guilt of the defendant to be considered with all the other evidence in the case. But, standing by itself, it could not prove guilt.”

122. [122]
     In that passage, his Honour told the jury that they would have to be satisfied that the appellant’s conduct was motivated by a consciousness of guilt of murder, and “not a consciousness of guilt of rape or stealing or the other offences to which he has pleaded guilty”.  His Honour did not include the further alternative that his conduct was evidence of a consciousness of guilt of an unintentional killing.  The sole ground of appeal, when this case was first argued, was that this was a misdirection which resulted in a miscarriage of justice.  In that argument, a verdict of manslaughter was said to be a real possibility at least because the jury might have held a doubt as to the appellant’s capacity to form the requisite intention.  However, in the submissions of the appellant’s then counsel, it was suggested that a verdict of manslaughter was also available “on the basis of the injuries observed”, which involved only “mild to moderate force”.^[31]
123. [123]
     In R v Mitchell,^[32] this Court held that a conviction of murder should be set aside because an Edwards^[33] direction about lies told by the appellant was ineffective, in that the jury was not instructed that the lies might show a consciousness of guilt with respect to the unlawful killing of the deceased but not necessarily a guilt of murder.  Keane JA (as he then was) there said:^[34]

“[50] The effect of these decisions of this Court may, I think, be summarised in the following way:  while it is for the jury to determine whether the circumstances are such that a lie can be said to be understood as revealing a consciousness of guilt of the greater offence, where the false statement is capable of amounting to an acknowledgement of guilt of one or more of several offences with which the accused stands charged, it is necessary for the trial judge to point out to the jury the possibility that the consciousness of guilt revealed by the lie relates to the lesser offence.  The position has been stated in similar terms in the Victorian Court of Criminal Appeal and Court of Appeal in R v Woolley and in R v Ciantar respectively.  This statement of the position is also in conformity with the decision of the Court of Criminal appeal of Western Australia in Banks v The Queen.”

(citations omitted)

124. [124]
     Those principles have been applied not only in relation to Edwards lies, but also other conduct of an accused person, occurring after the time of the alleged offence, which is relied upon as evidence of guilt.  For example, in R v Murray,^[35] they were applied to a case where the prosecution had argued that the appellant’s conduct, in disposing of the victim’s body, was indicative of his guilt of murder.  This Court ordered a retrial because the judge should have directed that the conduct could only be used as evidencing a consciousness of guilt of murder, if the jury was first satisfied that the conduct was not indicative of guilt of manslaughter.^[36]
125. [125]
     In each case, the directions as a whole must be assessed to determine whether there was a miscarriage of justice by the jury not being instructed about the relevant limitations of what is generally described in this context as post-offence conduct.  As was discussed in Murray, this Court’s judgments in R v Box & Martin^[37] and R v Ali^[38] are examples where a jury was properly alerted to the possibility that the accused’s lies were indicative of the accused’s guilt of lesser offences to murder, although there was no specific reference to the lesser offence of manslaughter.
126. [126]
     In the present case, however, the judge’s omission of the possibility that the post-offence conduct evidenced only an unintentional killing was an element of the jury not being properly directed on the issue of intention.  The jury was unlikely to have discovered for itself that they should first consider whether any of this post-offence conduct was evidence of his guilt of manslaughter, when the realistic pathway to that verdict was not explained to them.
127. [127]
     No redirections were sought to cure these deficiencies.  Nevertheless, there was a miscarriage of justice as a result of them, because the appellant was thereby deprived of the prospect of an acquittal of murder.  Although the jury was not bound to accept Professor Duflou’s evidence, they could have been sufficiently impressed by his evidence, as to this alternative hypothesis for the causes of death, to be unable to reject it.
128. [128]
     Indeed, this hypothesis may have provided a likely explanation for the absence of any of the usual signs of a death by strangulation.  Moreover, the hypothesis was not inconsistent with other evidence.  For example, it was not inconsistent with the text messages, sent by the appellant before he committed the offences against the deceased’s daughter.  It was not inconsistent with the appellant’s conduct in fleeing the scene and attempting to escape from the police.  It was not inconsistent with his suggested lack of concern, when committing the offences against the daughter, that he would be discovered by her mother.  Lastly and importantly, it was not inconsistent with the evidence of the witness, Ms Mehrten, that the appellant said that he had “killed someone”.
129. [129]
     Absent a realistic hypothesis that the appellant killed the deceased unintentionally, his post-offence conduct was very damaging to his case.  But with that realistic possibility, the prosecution case was considerably weaker.
130. [130]
     The respondent argues for the application of the proviso.^[39]   However the proviso cannot be applied because, in this Court, it cannot demonstrated that the evidence properly admitted at the trial proved, beyond reasonable doubt, the appellant’s guilt of murder.^[40]  The weight to be given to this jury’s verdict is diminished by the fact that the jury was not asked to consider the relevance in law of this hypothesis.  His Honour’s brief, and (respectfully) incomplete reference to the relevant evidence for this hypothesis, related the evidence only to the possible operation of s 23(1)(b), an issue which is unlikely to have troubled the jury because of the view which they were likely to have held about the reasonable foreseeability of death as a possible consequence of strangulation.
131. [131]
     This is a case where, proceeding wholly or substantially on the record, there are “those natural limitations [which] require the appellate court to conclude that it cannot reach the necessary degree of satisfaction”.^[41]  This Court, of course, has not seen and heard the evidence of the deceased’s daughter.  More generally, this Court ought not to apply the proviso, to determine for itself the question of whether the killing was not unintentional, when that essential question was not put to the jury except by reference to an unpromising hypothesis of an incapacity to form that intention.

The risk of propensity reasoning

132. [132]
     My conclusion on that ground of appeal makes it unnecessary for me to reach a conclusion upon the other grounds.  However, as I have said, I am also persuaded by the third ground of appeal, which is that the trial judge failed to give adequate directions as to the misuse by the jury of the appellant’s sexual offending against the deceased’s daughter.
133. [133]
     The only direction which was given on this subject was by this statement:

“Just because he pleaded guilty to the other charges does not mean he is also guilty of murder.  You must not use the fact that he pleaded guilty to the other charges to infer that he is guilty of murder.  In respect of the remaining charge of murder, the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt.”

134. [134]
     This case presented a serious risk of impermissible propensity reasoning by the jury.  That was a risk that the jury would consider that, having regard to the offences committed against the daughter, the appellant was such a ruthless and violent man that he would be the kind of person who would have murdered the deceased.  And the jury may have reasoned, impermissibly, that the appellant’s offending against the daughter was motivated by the same grievance which had caused him to murder her mother.  I agree with the President that the prosecutor’s argument to the jury, that it was an improbable coincidence that whilst the appellant was raping the daughter, the mother had died of natural causes, was conducive to propensity reasoning, and there the jury ought to have been instructed not to do so.
135. [135]
     It was insufficient for the jury to be told that his admission of guilt on the other charges did not mean that his guilt of murder was proved.  That simply told the jury that they still had the responsibility of considering the remaining charge.  It did not instruct the jury about the use which they could make, and importantly not make, of his commission of the other offences.  Because of the distressing facts of those offences, involving the rape of a 12-year-old girl, followed by her discovery that her mother was dead, the likelihood of propensity reasoning was high.  It may well have deprived the appellant of the prospect of an acquittal.  There was thereby a miscarriage of justice, and again, this Court could not be satisfied of the appellant’s guilt without hearing or seeing the evidence as it was given.

Further remarks

136. [136]
     At this point, something should be said about the submission which the prosecutor made to the jury, and which is repeated here, which was to the effect that the appellant’s admissions of the offences against the daughter proved that she was a credible witness.  That was an overstatement.  The appellant’s pleas of guilty to those offences, which were made after the completion of the evidence, demonstrated her credibility in her evidence of those offences.  It did not follow that such of her evidence, which was relevant to the murder charge, was to be accepted.  Indeed, the ordeal which she had endured on the night is likely to have so affected her such that some of her evidence may not have been the product of an accurate recollection.  The credibility of her evidence which was relevant to the murder charge was clearly in issue.  Clearly, it had not been damaged by her evidence of the offending against her, but nor did that evidence establish her credibility for the charge that remained.
137. [137]
     It is unnecessary for me to express a concluded view on the merits of the second ground of appeal, namely that there was a miscarriage of justice because the charge of murder should have been tried separately from the other charges.  However, the conduct of the retrial, which the President and I would order, might be assisted by something being said here about the necessity for a jury to hear of the offences against the daughter in assessing the murder charge.
138. [138]
     It was said that the offence of attempted rape, which had an element of intention,^[42] was probative of the appellant’s capacity to form an intent to murder or do grievous bodily harm.^[43]  That should be accepted, although there was other evidence which provided apparently strong support for the prosecution’s case on that point.
139. [139]
     The respondent’s submission that the omission of evidence of the offending against the daughter would make the daughter’s relevant evidence unintelligible, cannot be accepted.  The daughter could still give evidence that, at one point in the night, she was in the loungeroom with her mother, her siblings and the appellant, and that after leaving that room for some time, she returned to find her mother dead and the scene as she described it.
140. [140]
     It was submitted for the respondent that the jury had to hear of the offending against the daughter, because that gave force to the daughter’s “evidence in respect of identification of the defendant in a sequence of events”.^[44]  It was said that it was an important feature of the prosecution’s circumstantial case that there was a continued presence of the appellant at the home until the discovery of the mother’s death.  I would not accept that submission.  Indisputably, the appellant was at the home and was with the deceased during any time in which she might have been killed.  The timing of the text messages established when that might have been.
141. [141]
     Of more force is the respondent’s submission that it was important for the jury to hear the daughter’s evidence of the appellant’s apparent lack of concern that the daughter would tell her mother that he had raped her.  It was possible for the jury to use that evidence as demonstrating that the appellant knew that the deceased was dead.  I would accept that it had some probative force on the murder charge, depending on the jury’s interpretation of it.  However, the degree of its probative force would have to be weighed against the potentially prejudicial impact of a jury hearing of the sexual offences committed by the appellant.  Should the prosecution seek to adduce evidence of the offending against the daughter, over the objection of the appellant when he is retried, it will be for the judge ruling on that matter to consider whether, with regard to the directions which a jury might be given about the misuse of the evidence, there is an impermissible risk of a miscarriage of justice, requiring the evidence to be excluded.

Conclusion

142. [142]
     For these reasons, I agree with the orders proposed by the President.