R v Meale[2025] QCA 121

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  The appellant was convicted after trial before a jury of the murder of Mr Pollock who died on 2 September 2018 in Deception Bay.
2. [2]
   The appellant appeals on the following grounds:

3. 1.
   The trial judge erred in instructing the jury concerning the use of lies and other post-offence conduct as evidence of guilt without identifying the precise issues sought thereby to be proved.

3. 2.
   The trial judge erred in instructing the jury that they could use the evidence of lies and other post-offence conduct to prove intent when:

3. a.
   the prosecution did not seek to make such a case; and

3. b.
   the trial judge did not first identify intent as the issue to be proved and, instead, referred to the issue to be proved as “murder” or “the offence”.

3. 3.
   The trial judge erred by misdirecting the jury that they could use the appellant’s statements about where he disposed of the gun as a lie told out of a consciousness of guilt of murder.

Summary of relevant evidence

3. [3]
   There was a deal between the appellant and Mr Pollock (whose nickname was Rocky) facilitated by one Mr Smith that the appellant would give Mr Pollock methylamphetamine in exchange for some bullets.  Mr Smith gave evidence that Mr Pollock got his nickname because he was violent and that he was a “scary” person when he wanted to be.  The appellant received the bullets but Mr Pollock did not receive either the quantity or the quality of drugs that Mr Pollock expected.  He let the appellant keep the bullets but still wanted a gram of the drugs.  During the afternoon of 2 September 2018, there was a meeting between the appellant, Mr Pollock and Mr Smith at the house where Mr Pollock stayed with his sister, her son (the nephew) and the nephew’s girlfriend.  The appellant had offered to give the bullets back to Mr Pollock. Text messages of increasing hostility were exchanged between Mr Pollock and the appellant after the meeting.  Mr Pollock was aware that the appellant possessed a shortened .22 rifle.  Mr Pollock sent a text at 2.38 pm asking where his bullets were and stating:

“… u think that little toy gonna scare me ill spray your hole house up u gonna owe me more than wat u do now”

The appellant responded a minute later telling Mr Pollock to leave him alone or the appellant would find him and get him if he wanted to threaten the appellant’s house.  Mr Pollock messaged at 3.04 pm that he wanted to be “fixed up” with “a gram” and did not want to wait all day.  After further exchanges in which the appellant conveyed that he was expecting his supplier to come over after the supplier finished work at 4.00 pm and the appellant warned Mr Pollock that he lived with his parents and that he would kill anyone who hurt them, Mr Pollock texted the appellant at 3.22 pm which included the following:

“… i mean it if u dont want me to come there an play up that little toy u got not gonna stop me let me tell u u got one bullet in chamber i got fifteen so dont go mothing of to me ya goose i mean it i just want wats owed to me an it better be big shards an right on 4 oclock”

There were further texts in which the appellant explained that his mate would be finishing at 4.00 pm and then coming straight to the appellant.  Mr Pollock messaged at 3.41 pm and gave him until 4.15 pm to get the drugs to Mr Pollock.  At 3.54 pm, Mr Pollock messaged that he wanted what was owed and to stop being treated like a goose.  The appellant responded that he was not treating him like a goose and that Mr Smith should have told the appellant that it went to Mr Pollock but he did not and now the appellant was paying twice as he “did give him a bit” (which was a reference to giving a bit of drugs to Mr Smith). Soon after 4.00 pm the appellant let Mr Pollock know that he did not have a gram, and he had to wait for another contact in order to get that amount.

4. [4]
   At 8.19 pm, the appellant let Mr Pollock know that his mate was getting the drugs.  In a message sent at 8.26 pm Mr Pollock told the appellant to hurry up and to stop all the excuses, as Mr Pollock wanted what was owed which was “8 points” and that it had better be good quality (shards) and not “crushed up” drugs.  At 9.10 pm, the appellant messaged Mr Pollock that he was with his supplier and that it would not be long.  At 10.21 pm, Mr Pollock messaged the appellant wanting to know where he was, that he was 10 hours late and had better hurry up as Mr Pollock was over the excuses.  At 10.37 pm, Mr Pollock messaged the appellant saying to stop treating him “like a goose” and Mr Pollock gave the appellant 15 minutes to get to his place or Mr Pollock would see what he would do.  At 10.43 pm the appellant messaged Mr Pollock to stop threatening him and told him that he would be there soon.  There were further exchanges of messages and at 11.11 pm Mr Pollock messaged that he hoped the appellant “can duck cause i will spray your hole house up” and noted that the appellant had “only one in the chamber” but Mr Pollock “got fifteen”.  At 11.12 pm, Mr Pollock messaged “An get all your mates like i said i got fifteen in chamber ill get evey one ovve u scum dogs”.  The appellant sent a text to Mr Pollock at 11.20 pm saying that he was on his way and was at Rothwell.  Mr Pollock responded at 11.23 pm instructing the appellant to text him when he was coming up Mr Pollock’s road as he would grab his dog so that the appellant did not get bitten.  At 11.26 pm, the appellant messaged Mr Pollock that he had arrived.
5. [5]
   The appellant with his brother and two friends (Mr S and Mr Z) had driven to Mr Pollock’s home.  At about 11.30 pm they stood at Mr Pollock’s front gate and were all behind the fence on the footpath.  Mr Pollock came outside.  According to Mr S, Mr Pollock went down the side of the house first and got his dog and put it on the verandah and then walked back down the side.  Mr S said that Mr Pollock and the appellant began arguing and shouting at each other: Mr Pollock yelled “How dare you try to rip me off” and the appellant yelled “How dare you threaten my family” but Mr S could not remember what statement was said first.  He said Mr Pollock began to walk towards the front gate and, as he was doing so, he put his hand in his pocket and was fidgeting.  He was about halfway between the house and the fence, when Mr S saw the flash of the gun and heard the bang.  He did not see the appellant fire the gun but saw the appellant with the gun afterwards.
6. [6]
   It was not disputed that the appellant used his shortened .22 rifle to shoot Mr Pollock, hitting him in the chest below the sternum and ribcage but on the right hand side.  The bullet went into the abdomen at the juncture between the liver and the diaphragm, injuring the liver and the left hepatic vein, and went back into the left chest and into the pericardial cavity but did not penetrate the heart.  Mr Pollock fell over holding his chest and yelled out that, if he died, he was going to kill the appellant.  Mr Pollock died from blood loss as a result of the gunshot wound.  The evidence from witnesses as to the distance between the appellant and Mr Pollock when the appellant fired the shot was variously between 1.5 metres (Mr Pollock’s sister) and 6 metres (Mr S) with the appellant estimating it was 2.5 metres.  The 000 call was made at 11.30 pm and 27 seconds.
7. [7]
   The appellant and his companions ran to the car and immediately drove away from the scene.  At the time of flight, the appellant could not have known what Mr Pollock’s condition was after being shot but he knew that he had shot and hit Mr Pollock.  They drove to Teak Street, Rothwell where the gun was hidden underneath some grass clippings.  Early in the morning of 3 September 2018, the appellant’s brother’s partner drove the appellant and his brother to Teak Street where they picked up the gun.  The pieces of the gun and the bullets were thrown into the water off the Shorncliffe jetty.  The police subsequently found the firearm action, the sock containing ammunition and the firearm bolt in the water.
8. [8]
   Mr Pollock’s sister, the nephew and the nephew’s girlfriend gave evidence.  The nephew was woken by his mother screaming in the evening of 2 September 2018.  He saw Mr Pollock hunched over on the couch in the lounge room gasping for air.  The nephew grabbed the phone out of the pocket of the jumper that Mr Pollock was wearing.  It was the nephew’s phone that Mr Pollock had been using.  Mr Pollock was wearing a green and white bum bag.
9. [9]
   Mr Pollock’s sister was woken by Mr Pollock at about 11.30 pm when a car had pulled up down the road.  The appellant called out “It’s Justin” and asked whether the dog was tied up.  Mr Pollock replied the dog was not tied up and that he would come out to him.  He went to open the sliding door to the verandah.  The door was off its rollers and hard to roll, so when he went out it took a little bit for him to open the door.  His sister went out behind him and stood at the bottom of the step.  There were four people on the outside of the fence.  Mr Pollock walked towards the gate and there were only a couple of seconds before he was shot.  When Mr Pollock’s sister marked her position, Mr Pollock’s position and the appellant’s position on the plan of her house property (exhibit 8) she had Mr Pollock very close to the appellant and accepted the distance between them was between one and 1.5 metres.   His sister helped Mr Pollock get back into the house.  His sister had wanted to telephone the police at the outset when the car pulled up.  Mr Pollock had grabbed the phone out of her hand and put it in the pocket of his jacket.  After Mr Pollock was shot, his sister could not say what happened to the phone.  It was the nephew’s girlfriend’s phone.  The neighbours came to help.  Mr Pollock did not have a gun on him.  When Mr Pollock had reached into his pocket, the gun was fired at him.
10. [10]
    The nephew’s girlfriend was sleeping when the incident happened and the screaming by Mr Pollock’s sister woke her up.  The girlfriend went out to the lounge room and took Mr Pollock’s bum bag off.  It was white and had a green strap.  With a neighbour, the girlfriend helped lay him on the floor.  Photographs of the bum bag and its contents were tendered (exhibit 9). (Although the nephew and his girlfriend referred to it as a bum bag, other witnesses described it as a satchel or a shoulder bag.) The contents included scripts, medication, two cigarette lighters and Mr Pollock’s black wallet.
11. [11]
    A search by the police of the house where Mr Pollock had been shot did not locate any gun.
12. [12]
    The next day at 3.36 pm, Detective Thomas arrested the appellant on a charge of murder and transported him to the Redcliffe Police Station.  That interaction was audio recorded (exhibit 11).  The appellant at first denied knowing Mr Pollock.  He said he was with his girlfriend, Ms T, the previous night.  He then said he had been at Mr Pollock’s house the previous day or the day before in the afternoon but did not return there.
13. [13]
    The interview with Detective Thomas commenced at 4.27 pm on 3 September 2018 (exhibit 12).  At several times during this interview, the appellant denied returning to the Thompson Street address after he had been the other day “in the afternoon”.  He said that even though there was a message at around 11.00 pm to the phone number that was saved in Mr Pollock’s phone as the appellant’s number that stated “on my way”, the appellant responded he was supposed to go and see Mr Pollock but he did not.  The appellant denied being at the Thompson Street address when Mr Pollock was shot and he denied shooting Mr Pollock.  He denied having a gun.
14. [14]
    Detective Weare conducted a further interview with the appellant commencing at 2.02 am on 4 September 2018 (exhibit 13).  When Detective Weare was taking a DNA sample from the appellant at 11.30 pm on 3 September 2018, the appellant indicated he wanted to speak to Detective Weare because he was more down to earth than Detective Thomas.  The appellant eventually decided that he wanted to go on the record with Detective Weare.  He said he wanted to tell the truth, so that everyone knew exactly what happened.
15. [15]
    The appellant made the following statements to Detective Weare.  Mr Pollock had been making threats telling the appellant he was going to “spray” his house up and the appellant was concerned that would be detrimental for his parents and his nieces and nephews who visited his parents’ home.  He decided that, if Mr Pollock was going to get him, he would go there and get him first.  The appellant knew he had only a single shot from his .22 rifle and that Mr Pollock was saying that he had 15 shots to the appellant’s one shot.  When Mr Pollock walked out he had one hand in his pocket and one hand down his pants.  Mr Pollock “smashed the door open too”.  Mr Pollock told the appellant to come inside on his own.  The appellant said that he was not coming inside on his own after all the threats Mr Pollock had made and how about they meet halfway in the yard.  Mr Pollock walked out.  The appellant was scared because he had only one shot and Mr Pollock had a “semi auto”.  The appellant did not know what weapon that Mr Pollock had but that was what he said he had.  The appellant decided “it was either me or him kind of thing as he was gettin’ closer”.  There was a fence between them.  The appellant was waiting for Mr Pollock to do something and “he’s just moved, like he’s sort of jimmied” and the appellant just pulled his rifle out and shot Mr Pollock and got him first.  It happened “real quick”.  The appellant had “hit” Mr Pollock and then took off running.  It was the way Mr Pollock “jerked” that the appellant thought that he was going to “spray” him and the appellant “just reacted”.  The appellant thought that Mr Pollock had not been lying when he said he had a semi-automatic and that he probably did.  He thought he would teach him a lesson and “shoot him quick”.  The appellant was surprised when he was running off that Mr Pollock did not shoot back.  The next morning he heard that Mr Pollock had died and was surprised because he did not think a .22 rifle would kill a person, unless you shot them in the head.
16. [16]
    The appellant threw the shortened .22 rifle over the bridge at Clontarf.  Detective Weare observed there were a couple of bridges at Clontarf and the appellant responded that he would have to show him.  He took the rifle to pieces and walked along and threw one piece and then another piece.  He did not know if it was the Hornibrook Bridge.  He threw something off where the fishing spot was.  The appellant thought he would wound Mr Pollock, as he was using a .22.  He aimed for the right side and tried to get him in the shoulder.
17. [17]
    Earlier on the day of the incident, the appellant had a punch up with Mr Smith.  When Detective Weare suggested that the appellant had shot at Mr Smith, the appellant denied doing so and said if he had shot at him, “I would have definitely hit him”.  Later in the interview the appellant confirmed that if he had shot at Mr Smith, he would not have missed him.
18. [18]
    The appellant took two others with him.  Mr Pollock smashed the door open and was saying to the appellant “you come in here on your own”.  The appellant declined.  He did not mean to kill Mr Pollock.  He just wanted to wound him in the shoulder.  When Mr Pollock had threatened to “spray” his house, the appellant was going to “get” him and “teach” him a lesson.  That was what he was trying to do.  He should not have shot him.  He did not plan on shooting him but he was scared and just reacted.  He was supposed to “just get hurt”.  If Mr Pollock had not told the appellant he had that gun, the appellant would have just punched him.  The appellant would have punched Mr Pollock “if he just didn’t say … I’ll spray your house straight up”.  He did not go there thinking that he was going to get Mr Pollock but that Mr Pollock was going to get him.  He did not go there to kill him.  As soon as the appellant saw Mr Pollock move, he “got him”.  He was supposed to wound him and “teach him a lesson” so that he would know the appellant was not “a pushover”.
19. [19]
    Another interview of the appellant with Detective Thomas commenced at 2.20 pm on 4 September 2018 (exhibits 15 and 16).  The appellant made the following statements in that interview.  Mr Z drove the appellant to Mr Pollock’s house.  The appellant shot Mr Pollock but did not mean to kill him.  The appellant had given Mr Smith six points but Mr Smith said the appellant had only given him two points.  The appellant described Mr S and Mr Z as travelling in the car with him to Thompson Street and refused to name the other person who was with them.  After the shooting, the gun was buried at Teak Street under lawnmower clippings.  The appellant went back to pick the gun up.  When he was asked how he got the gun to the bridge, he responded that he did not want to tell as that involved someone else.  When asked whether he was prepared to show the police the whereabouts of the gun, he said he would have to ask “this other person” where it was, as they helped him and he did not want to tell on that person.  Someone else broke the gun into parts and threw it in the water and the appellant was not there for that.
20. [20]
    In the afternoon of 2 September 2018, the appellant called Mr Z to get his help about Mr Pollock’s threat to the appellant’s family’s house.  Mr Z came over to the appellant’s house.  They used “ice”.  Mr Z told the appellant to shoot Mr Pollock in the leg but the appellant said he would shoot him in the shoulder on the right side.  Mr Z encouraged him to go and shoot Mr Pollock and teach Mr Pollock a lesson.  His .22 rifle was bolt action and a single bullet was in the barrel.  When he arrived at Thompson Street, the appellant had his loaded gun down the front of his pants.  Mr Pollock was ripping the sliding door off which made the appellant think that he was in a bad mood.  As Mr Pollock walked out, the appellant recalled:

“I’ve made a decision right there and then. I’m not gonna, I’m gonna teach him a lesson, gonna shoot him in the shoulder like I already said I’d do. And he’s come walking out, and I was thinking, alright, I got one shot. If he’s gonna shoot me, I’ll shoot him first just before he can actually even shoot me, you know what I mean…

And he’s walked out like this, the whole, like that. Like a bit sus, it looked like he would’ve had a hole in his jumper and something going through like that… And um, he’s made it like halfway down, or like near to the fence. And as he’s gotten near there I’ve seen. Like he’s gone, maybe he just stayed up too long and he twitched, I don’t know. I seen him just go like that. And I’ve just gone, bang. That was it, it was that quick.”

The appellant explained that seeing Mr Pollock “twitch” had “triggered” him up and he pulled his gun, aimed it straight to hit Mr Pollock in the right shoulder.  The appellant had reacted to his movement. The appellant did not say that he saw Mr Pollock with a gun before the appellant shot him.  It was the next day that the appellant went back to get the gun from where it had been hidden immediately after the shooting.

21. [21]
    At the conclusion of this interview, Detective Thomas prepared a draft six page statement on the basis of the interviews.  A further interview was recorded (exhibit 17) when Detective Thomas took the appellant through the statement.  The appellant signed the finalised statement and it was tendered in evidence (exhibit 19).  The appellant stated in paragraphs 15 to 20 of the statement:

3. “15.
   Rocky was sending me threats via text message, and by calling me. He was threatening to shoot up my house. I live with my parents, and I think it’s wrong that he would say that.

3. 16.
   [Mr Z] was getting me a bit pumped up about it. [Mr Z] was saying ‘This is your family house, you can’t let him get away with that’.

3. 17.
   I said ‘Yeh I guess so. What should we do? I’ll shot him’

3. 18.
   [Mr Z] said ‘Yeh, lets do this.’

3. 19.
   I said ‘Can you take me there?’

3. 20.
   [Mr Z] said ‘Yeh lets do it.’”

22. [22]
    Paragraph 33 of the statement dealt with the burying of the gun by the appellant at Teak Street.  There was nothing in the statement about the subsequent retrieval of the gun and the disposal of it in parts off a bridge.
23. [23]
    The appellant did not give or call evidence at the trial.
24. [24]
    On the hearing of the appeal, it was conceded appropriately on behalf of the appellant that paragraphs 15 to 17 of this statement were capable of being accepted as evidence that the appellant went to Mr Pollock’s house with the intention of shooting him.  It was not in issue at the trial that the appellant shot Mr Pollock and he died.  The issues for the jury were whether the prosecution could prove beyond reasonable doubt that the appellant intended to kill or cause Mr Pollock grievous bodily harm or whether the prosecution could exclude self-defence against an unprovoked assault or against a provoked assault beyond reasonable doubt or, if the jury were satisfied beyond reasonable doubt that the appellant was guilty of murder, whether the appellant had proved the partial defence of provocation on the balance of probabilities.  The issue of self-defence did not arise for the jury if the prosecution excluded beyond reasonable doubt that the appellant did not act under an honest and reasonable mistaken belief that Mr Pollock had a loaded firearm on him and was about to fire it at the appellant.

The prosecution case at trial

25. [25]
    The nub of the prosecution case for the offence of murder was that the shooting was premeditated as the appellant went to Mr Pollock’s home with his gun loaded and was always going to shoot Mr Pollock.  On the question of intent, it was sufficient that the appellant intended to cause Mr Pollock grievous bodily harm (as was his stated intention) for the prosecution to discharge the burden to prove beyond reasonable doubt the intent required for the offence of murder.  To prove this intent, the prosecution also expressly relied on the facts that the gun was loaded when the appellant got out of the car at Mr Pollock’s place, the distance between the appellant and Mr Pollock when the appellant fired his gun, on the position of the wound, and the appellant’s stated experience in using the gun.
26. [26]
    On the issue of whether the appellant was operating under a mistake of fact, the prosecutor submitted that, either by excluding beyond reasonable doubt that the appellant did not honestly hold the mistaken belief that Mr Pollock had a loaded firearm on him and was about to fire it at him or that belief was not reasonable in the appellant’s circumstances, the jury would be satisfied that there was no room for the operation of honest and reasonable but mistaken belief.  It was submitted by the prosecutor to the jury that, from the exchanges that occurred between the appellant and Mr Pollock immediately before the incident, the appellant would not have anticipated that Mr Pollock would have a gun at the time he was coming out to collect his drugs from the appellant.
27. [27]
    In the closing address, the prosecutor submitted that the jury would be satisfied that self-defence against an unprovoked assault had been excluded beyond reasonable doubt as they would not be satisfied that the appellant was unlawfully assaulted by Mr Pollock.  The prosecutor then addressed the issue of self-defence, on the assumption that the prosecution could not exclude that the appellant held an honest and reasonable but mistaken belief (that Mr Pollock had a loaded firearm on him that he was about to pull out).  The prosecutor submitted that, on that assumption, the jury would be satisfied beyond reasonable doubt that the nature of the assault by Mr Pollock when he had not even removed his hand from his pocket was not such as to cause a reasonable apprehension of death or grievous bodily harm.  The prosecutor submitted further that the prosecution had excluded that the appellant actually believed on reasonable grounds that he could not otherwise save himself from death or grievous bodily harm than by firing his own gun.  As Mr Pollock had not even removed his hand from his pocket when the appellant had his own gun out, the appellant could have yelled at him or warned him in some way that he would shoot him if he pulled out his weapon.  The prosecutor submitted that there were other reasons why the appellant shot Mr Pollock (which the appellant had revealed in his police interviews, including that he wanted to teach Mr Pollock a lesson) and it was not self-defence.  If the jury were considering self-defence against a provoked assault, the prosecutor submitted that the prosecution had disproved each of the elements of that defence (when only one element of that defence had to be excluded beyond reasonable doubt for self-defence against a provoked assault to be excluded).  The prosecutor particularly relied on that defence not being open on the basis the appellant began the initial assault with intent to kill or do grievous bodily harm to Mr Pollock (as the appellant had expressed that his intention was to shoot Mr Pollock in the shoulder).
28. [28]
    The prosecutor in his closing address to the jury expressly relied upon lies and other post-offence conduct as evidencing consciousness of guilt.  The post-offence conduct relied on was flight from the scene of the shooting and hiding and disposing of the gun used in the shooting.  The prosecutor argued that, if one was acting in self-defence, one did not run away after using the gun, so that by running away he acted out of consciousness of guilt and did not act in self-defence and for the same purpose also relied on the appellant’s hiding and disposing of the shortened .22 rifle after the shooting.
29. [29]
    The prosecution also argued that the lies that the appellant told after shooting Mr Pollock demonstrated that the appellant knew he was guilty of the “offence”.  There were four lies (the four lies) relied upon by the prosecutor in his address to the jury as demonstrating consciousness of guilt:

    1. the statement the appellant made to the police when he was arrested that he did not return to Mr Pollock’s home on the evening of the shooting;
    2. he was not involved in the death of Mr Pollock;
    3. he did not own a gun; and
    4. he gave a false location to Detective Weare of where he disposed of the gun.
30. [30]
    The second and third lies which were told in the interview with Detective Thomas on 3 September 2018 were the subject of a submission by the prosecutor that the appellant told lies instead of taking the first opportunity he had to say to the police (which he did subsequently) that he was defending himself, as Mr Pollock was armed.
31. [31]
    The prosecutor’s submissions to the jury in relation to the partial defence of provocation did not rely on consciousness of guilt arising from either the post-offence conduct or any of the four lies.
32. [32]
    Even though the prosecutor talked generally to the jury about “consciousness of guilt”, it was apparent from the focus of the prosecution address to the jury on the offence of murder, that the submissions were directed at relying on the post-offence conduct and lies as evidencing consciousness of guilt of murder.  After introducing that the trial judge would give directions on the preconditions of which the jury needed to be satisfied before they could use the post-offence conduct and lies as demonstrating consciousness of guilt, the prosecutor submitted that the lies showed “a level of knowledge; that if he told the truth, it would implicate him in the commission of the offence”.

The defence contentions at trial

33. [33]
    The appellant’s trial counsel’s address to the jury concentrated on reminding the jury of relevant parts of the evidence, particularly the content of the text messages exchanged on the day of the incident, and making submissions on what the jury would draw from that evidence about the reasonableness and honesty of the appellant’s belief that Mr Pollock was armed and had his hand in his pocket and was about to withdraw his weapon.  The appellant’s counsel’s address to the jury also reminded them of the many statements made by the appellant in the interviews about his state of mind and his intentions in taking his loaded gun with him to Mr Pollock’s house.
34. [34]
    The appellant’s trial counsel made the following submissions in his closing address to the jury that are relevant to the issues raised in this appeal:

    1. the appellant’s actions in firing his weapon must be assessed on the basis that the appellant thought that Mr Pollock had a gun;
    2. the appellant had been threatened by Mr Pollock repeatedly, knew of Mr Pollock’s reputation for violence, and had every reason to believe that Mr Pollock had a 15 shot firearm tucked down his pants or in his pocket;
    3. the appellant was on drugs at the time of the shooting;
    4. the appellant reacted to Mr Pollock’s movement which he thought was Mr Pollock reaching for his semi-automatic weapon and the appellant fired his weapon first;
    5. the appellant did not mean to kill Mr Pollock but just wanted to wound him;
    6. he ran away from the scene because he had shot Mr Pollock and expected Mr Pollock to shoot back at him;
    7. it was patently obvious that the appellant lied in the first interview with Detective Thomas;
    8. the appellant explained to the police that he lied about not being present when Mr Pollock was shot because he was scared and he did not know what else to do.
35. [35]
    On the question of whether the appellant intended to do grievous bodily harm to Mr Pollock, his trial counsel relied on the statements made by the appellant during the interviews about any likely injury from his using a .22 rifle to shoot Mr Pollock and that he was aiming for Mr Pollock’s right side and his shoulder.
36. [36]
    The appellant’s trial counsel summarised his argument on self-defence in these terms:

“Effectively, it comes down to commonsense, what’s reasonable. He had a gun; he had every reason to believe this other lunatic had a bigger gun. They got to this ridiculous Mexican standoff. He thought he was going to be shot, so he shot him. Insane as that is, that’s what’s happened. And his actions have to be judged in that light.”

37. [37]
    To assist the trial judge with the summing up, the prosecutor and the appellant’s trial counsel had jointly prepared documents on the two types of self-defence and provocation and made submissions to the trial judge on the draft directions that the trial judge provided to counsel before the trial judge summed up on those defences. Both counsel suggested numerous amendments to those directions.  The appellant’s trial counsel was therefore aware of what the trial judge proposed to say by way of directions in respect of the partial defence of provocation and in his address merely referred to the directions that the trial judge would give to the jury on the defence of provocation and emphasised the different onus that applied to the appellant in relation to that defence.

The trial judge’s directions

38. [38]
    The directions given by the trial judge in the summing up must be considered in the context of the trial, the instructions given by the trial judge to the jury about their task throughout the trial, and the addresses by counsel to the jury that expressed the issues of fact to be considered by the jury in undertaking their task of reaching a verdict or verdicts.
39. [39]
    In the opening remarks, the trial judge had given the jury directions with respect to the elements of the offence of murder.  The prosecutor in his opening address to the jury had foreshadowed that a live issue would be the unlawfulness of the appellant’s act of killing Mr Pollock and whether the prosecution could negate self-defence and the other live issue was the element of whether the appellant had an intent to cause the death of Mr Pollock or cause him grievous bodily harm (which was the element of intent for the offence of murder).  The appellant’s trial counsel had also alerted the jury in his opening comments that the focus of the trial would be on whether they were satisfied beyond reasonable doubt that the appellant was not acting in self-defence and, if they were so satisfied, whether they were satisfied beyond reasonable doubt that the appellant intended to kill Mr Pollock or do grievous bodily harm.  In other words, the jury only needed to consider the issue of intent, if the prosecution excluded self-defence beyond reasonable doubt.  Ultimately, the jury were directed on the partial defence of provocation, if they were satisfied beyond reasonable doubt that the appellant was guilty of the murder of Mr Pollock.  For the purpose of dealing with the grounds of appeal, it is not necessary to consider the directions of the trial judge on the partial defence of provocation.
40. [40]
    In giving the directions in respect of the four lies, the trial judge noted that the prosecution relied on what it said were the four lies as showing that the appellant was guilty of “the offence”.  It is apparent from the summing up that the trial judge was generally referring to the charge on the indictment of murder as the offence and, when it was necessary to do so, referred to the alternative charge of manslaughter.  The trial judge instructed the jury that in respect of each lie, they first had to be satisfied that the appellant told a deliberate untruth.  The trial judge gave the jury examples of when an untruth may not be a deliberate lie such as confusion on the part of the person being questioned.  The trial judge suggested that the first three lies may not easily be explained by confusion or other reasons but that was a matter for the jury.  In relation to the fourth lie, the trial judge noted there was no evidence about who dropped the gun parts off the Shorncliffe pier and it was possible that someone else did so and the appellant was telling the police what he had been told or it was also possible he was confused about the location.  The trial judge directed the jury that, secondly, the lie was concerned with some circumstance or event connected with the offence.  The trial judge then stated:

“Thirdly, you must be satisfied that the lie was told because the [appellant] knew that the truth of the matter would implicate him in the commission of the offence. He must be lying because he is conscious that the truth could convict him. There may be reasons for the lie quite apart from a realisation of guilt. People sometimes have an innocent explanation for lying. A person may lie out of panic or confusion or to escape an unjust accusation or to protect some other person or to avoid another consequence that is extraneous to the offence. Again, in particular, the last of the four alleged lies seems to be quite different from the others.

By the time the [appellant] was talking about where he disposed of the gun, he had already told the police that he had returned to Thompson Street on the evening in question. He had already told them that he was involved in the death of Clinton Pollock and he had already told them that he had a gun. It does not seem very simple to say that the [appellant] lied about where he disposed of the gun because he was conscious that the truth about that topic would implicate him in the commission of this offence. It is a matter for you, members of the jury. You might have some difficulty accepting this with respect to the fourth alleged lie or you might think it can be explained in that way. The other three lies may be different from it; they are all matters for you.”

41. [41]
    In respect of the third aspect on which the jury had to be satisfied before they could act on a lie as consciousness of guilt of the offence, the trial judge posed the following questions where he used “unlawful killing” (which could cover either murder or manslaughter) rather than confining the direction to the offence of murder:

“Again, did he know that telling the truth about this involvement in the death would implicate him in the commission of this offence? Was he conscious that the truth could convict him and is that why he told a lie? When he said he did not have a gun, did he know telling the truth that he had a gun would implicate him in the unlawful killing and was he conscious the truth could convict him?”

42. [42]
    In giving the directions on the four lies, the trial judge reminded the jury of the appellant’s trial counsel’s suggestion that there may be explanations for the lies, including that the appellant may have been trying to protect his brother by not revealing he was present at the relevant times and that, if the jury accepted there was a possible reasonable explanation for any of the lies, they could not use that lie against the appellant.
43. [43]
    Before proceeding to give directions on post-offence conduct, the trial judge reminded the jury about the process involved in a criminal trial in these terms:

“The proper approach is to understand that the Prosecution case depends upon you, the jury, finding facts and then applying the law to those facts so that you are satisfied beyond reasonable doubt that all of the elements of the offence have been proved.”

This repeated what had been covered in the trial judge’s opening remarks to the jury that to find the appellant guilty of the charge, the prosecution must prove every element of the offence beyond a reasonable doubt.

44. [44]
    The trial judge noted the prosecution’s submission that the appellant left the scene and hid and disposed of the gun because he knew he was guilty of the offence with which he was charged and not for any other reason.  (That was confirmation that the prosecution case was, as set out above, that the post-offence conduct was relied on by the prosecution as consciousness of guilt of the offence of murder.)  The trial judge then proceeded to give directions about the three-step approach before any post-offence conduct could be used as evidence of an indication of the appellant’s guilt.  The trial judge explained that the jury needed to consider each of the three acts of leaving the scene, hiding the gun and disposing of the gun separately.  In respect of each act, the jury had to be satisfied that the appellant did the act, that act was concerned with some circumstance or event connected with the offence of murder, and that the appellant did the act because he knew he would otherwise be implicated in the commission of the offence of murder “as opposed to some other offence”.  The trial judge squarely raised for the jury that they might not be satisfied the appellant fled because he might be implicated in murder because they might think he fled because he might be implicated in some lesser offence, such as unlawful wounding or manslaughter.  They were expressly told that the evidence of those acts could not assist the prosecution unless they were motivated by a consciousness of guilt on the appellant’s part of the offence of murder and not some other offence of a lesser kind.  Again, the trial judge reminded the jury expressly about the other possible explanations for those acts that were advanced by the appellant’s trial counsel in his address to the jury.
45. [45]
    The trial judge concluded the direction on post-offence consciousness of guilt with the standard direction about how a finding of post-offence consciousness of guilt by the jury would be used in their deliberations:

“If and only if you reach the conclusion that there is no explanation for these acts, that is, fleeing the scene, hiding the gun and disposing of the gun, no explanation other than the reasons contended by the Prosecution, then you are entitled to use those acts as circumstances pointing to the [appellant’s] guilt. You would then consider that with all the other evidence in the case. You should be clear in your minds that, by itself, running away, hiding the gun or disposing of the gun could not prove the [appellant’s] guilt.”

46. [46]
    During a break in the summing up, the prosecutor suggested to the trial judge that in the directions given on lies it was necessary for the trial judge to mention specifically manslaughter as the trial judge had done in giving the direction on post-offence conduct.  As a result, the trial judge gave this further direction:

“Members of the jury, yesterday, when I was summing up, I mentioned to you that the prosecution relied on what it says are four lies told by the [appellant] as showing that he is guilty of the offence with which he is charged. They were the – when he said he didn’t return to Thompson Street, when he said he wasn’t involved in the death of Clinton Pollock, when he said he didn’t have a gun and what he said about disposing of the gun. You might remember what I said about that.

And I said to you you have to be satisfied of three things before you could use that as – in your deliberations as an indication of guilt and the first of those was that you had to be satisfied that the [appellant] had told a deliberate untruth. The second was that you had to be satisfied that the lie was concerned with some circumstance or event connected with the offence and the third one was that you had to be satisfied that the lie was told because the [appellant] knew that the truth of the matter would implicate him in the commission of the offence and that’s the offence of murder.

And what I should have said to you is that it must be that offence that he has some knowledge that it will implicate him in. If he told the lie because he knew it might implicate him in some other offence, then that’s – that lie is not to be used as an indication of his guilty of this offence.

Now, in this case, you might need to consider the fact that there was a lot of illegal drug activity going on, including the background transaction to the – this event, the trade of bullets for methylamphetamine and unless you are satisfied that the – that any of those lies that he told to police were told because he knew the truth would implicate him in murder, you mustn’t use those – or that particular lie against him as an indication of guilt. If you think that he told the lie for some other reason – including, for instance, because he didn’t want to be implicated in any illegal drug activity or in wounding of Clinton Pollock, anything other than murder – then you are not to use that or any of those lies against him, unless you’re satisfied that that’s why he told the lie.”

47. [47]
    When the trial judge turned to dealing with the elements of the charges, he explained again to the jury:

“Proof of any offence requires proof of the elements of the offence and the elements of the offence are the essential ingredients of it. All of those elements must be proved beyond a reasonable doubt in order to prove the offence.”

48. [48]
    The trial judge then commenced to sum up on the four elements of the offence of murder that had to be proved beyond reasonable doubt.
49. [49]
    Before dealing with self-defence against an unprovoked attack and self-defence against a provoked attack, the trial judge reminded the jury of some of the evidence from Mr Pollock’s sister, Mr S and the statements made by the appellant during his interviews about the incident.  In relation to self-defence against an unprovoked assault, the trial judge identified the four matters which, if the prosecution satisfied the jury beyond reasonable doubt on any one of those matters, would exclude self-defence against an unprovoked assault as a defence.  These were detailed directions on each of the matters that the prosecution was seeking to exclude beyond reasonable doubt to satisfy the jury that the appellant had acted unlawfully in shooting Mr Pollock.  On whether there had been an unprovoked assault by Mr Pollock, the trial judge directed the jury:

“If you accept that as Clinton Pollock walked towards the [appellant], Clinton [Pollock] reached with his right hand into the pocket of his hoodie or jumper or fidgeted with his right hand in that pocket or, as the [appellant] stated to police, made a small, fast motion like he was pulling something out of his pocket and that the [appellant] was scared and the [appellant] believed that Clinton had a loaded firearm on him and was about to fire it at him, then you might also accept that such a bodily act or gesture by Clinton Pollock meets the definition of an assault, or at least you might be in reasonable doubt about that.”

50. [50]
    The trial judge then directed the jury on self-defence against a provoked assault and identified the four matters which, if the prosecution satisfied the jury beyond reasonable doubt on any one of those matters, would exclude self-defence against a provoked assault as a defence.  One of those matters was that the appellant first began the initial assault with intent to kill or to do grievous bodily harm to some person.  The trial judge directed the jury that in relation to this type of self-defence, the first thing that the prosecution must seek to satisfy the jury about had two parts: did the appellant assault Mr Pollock at the beginning of their encounter; and did the appellant begin any initial assault on Mr Pollock with intent to kill or do grievous bodily harm.  In relation to the second part, the trial judge directed as follows:

“You then need to consider the second part of this first question: whether the [appellant] began that assault with intent to kill or do grievous bodily harm. It is for you to evaluate the evidence from which any intention of the [appellant] might be inferred. Intention doesn’t have a special legal meaning. It has its ordinary meaning. You have the evidence in the recordings where the [appellant] might be heard to tell the police that he had decided to teach Clinton Pollock a lesson, and that he wanted to show Clinton Pollock that he could not be pushed around. You have the recordings where the [appellant] might be heard to say that he spoke with [Mr Z] about what he intended to do to Clinton Pollock, that is, shoot him in the shoulder or in the right-hand side of the body. You have the other things the prosecution points to as evidence from which you might infer the [appellant’s] motive, namely, that the [appellant] took a loaded gun to Clinton’s house, that he fired the gun within a relatively close range of Clinton, that the bullet struck Clinton a little to the right of the centre of his body just below the ribcage, the [appellant’s] statements about his ability to shoot with the gun, and his statements about his intention to wound Clinton Pollock. If you are satisfied beyond reasonable doubt that the [appellant] went to the house where Clinton was living at night, in company with three other men, and approached the house with a loaded sawn-off rifle down the front of his pants, with the intention of killing or causing grievous bodily harm to Clinton, and you’re also satisfied that this was an assault by the [appellant], then the prosecution will have successfully excluded this self-defence defence.”

51. [51]
    The trial judge supplemented the further direction given on the third aspect of using each of the four lies as consciousness of guilt by giving another direction:

“Members of the jury, at the beginning of today, I reminded you about some submissions I made to you about the use of lies that were proposed by the prosecution and I said to you that the third and last thing you had to be satisfied of was that any lie that was told by the [appellant] that the prosecution relies upon, you would have to be satisfied that the [appellant] knew that the truth of the matter would implicate him in the commission of the offence of murder and that meant he must be lying because he is conscious that the truth could convict him of murder. And I said to you it has to be murder and not some lesser offence, you know, I think I gave you examples about unlawful wounding or illegal drug activity, those sorts of things.

I should have said to you also manslaughter, which is the alternative to murder, so that if it’s not – if you’re not satisfied beyond reasonable doubt that he told any of those lies because he was conscious that it would implicate him in the commission of murder, you can’t use the lie as a reason – or part of your reasoning to get that point and you need to be able to be satisfied that he wasn’t lying because he was conscious that he might be guilty of manslaughter – that’s the unlawful killing but without the intentional element that we’re about to deal with.”

52. [52]
    The trial judge then dealt with the element of intent, giving the usual directions on the intention that is required to be proved beyond reasonable doubt for the offence of murder, including the usual directions on the effect of intoxication of the appellant at the relevant time on the proof of the element of intent.  The trial judge reminded the jury that he already said a number of things about intention, including in the course of giving the directions on self-defence (which is set out in full in [50] above).
53. [53]
    In summarising the prosecutor’s address to the jury, the trial judge stated:

“The prosecution relies on the conduct of the [appellant] after Clinton Pollock was shot as being motivated by a consciousness of guilt on the part of the [appellant] and …  I’ve made some comments to you about that, and directions.  He says the Crown relies on two matters; the [appellant] fleeing from the scene of the offence and the [appellant] hiding and disposing of the sawn-off .22 rifle used in the offence.

He identified a number of things that he said were lies by the [appellant], to show that the [appellant] was conscious that the truth would implicate him in the offence, and I’ve made some submissions to you about those lies in my summing up.  I’ve summarised them for you, that he told the police initially that he didn’t return to Thompson Street in the evening, that he was not involved in the death of Clinton Pollock, that he didn’t have a gun and he told them, it was said, a lie about how he disposed of the gun.”

54. [54]
    The trial judge repeated the prosecutor’s submission that it was not self-defence because the appellant went to Mr Pollock’s house with his own firearm cocked and ready to fire and he then shot Mr Pollock.
55. [55]
    The trial judge then summarised some of the points made in the appellant’s trial counsel’s address emphasising the threats made by Mr Pollock in the text messages and repeating the submission that Mr Pollock was standing over the appellant demanding drugs from which the jury might form some view about the kind of person Mr Pollock was.  The trial judge repeated the submission that on the evidence the jury would not be persuaded beyond reasonable doubt that the appellant did not think that Mr Pollock had a gun and that his belief was not honest or reasonable.  The trial judge reminded the jury of the submission that they should judge the appellant’s actions on the basis of the appellant’s belief that Mr Pollock had a firearm on him, he had been repeatedly threatening the appellant, and the appellant knew about Mr Pollock’s reputation for violence.

Ground 1 – Did the trial judge err in failing to identify for the jury the precise issues to which the use of the lies and other post-offence conduct could be used as evidence of guilt?

56. [56]
    There was no demur from the appellant’s trial counsel when the prosecutor sought directions from the trial judge in relation to the four lies and the post-offence conduct of flight and hiding and disposing of the gun as evidence of consciousness of guilt.
57. [57]
    The significance of the prosecution’s reliance on a defendant’s lies or other post-offence conduct as consciousness of guilt and the directions that should be given to a jury when there is such reliance by the prosecution was explained in the joint judgment of Deane, Dawson and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 at 208-211.  See also Zoneff v The Queen (2000) 200 CLR 234 at [16] and [20].  A succinct summary of the use in a criminal trial of a lie as consciousness of guilt admissible as an implied admission against interest is set out in the judgment of Buss P and Mitchell and Beech JJA in Evans v Western Australia (2020) 55 WAR 310 at [70]-[71]:

3. “[70]
   The use of a lie in this manner involves the drawing of an inference that the accused committed the charged offence from post-offence conduct. The inference that the accused committed the charged offence is drawn from the telling of a lie which would not be told unless the accused was guilty of the charged offence. The telling of the lie is therefore circumstantial evidence of the accused’s guilt of the charged offence. The telling of the lie may be used, together with such other evidence which the jury accepts, to satisfy the jury, beyond reasonable doubt, that the accused committed the charged offence.

3. [71]
   Unless the lie is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends, it is not necessary for the jury to be satisfied beyond reasonable doubt that the lie itself establishes guilt. That reflects the ordinary way in which circumstantial evidence is to be used in a criminal trial.” (footnotes omitted)

58. [58]
    To the extent the appellant’s submission on the appeal asserted that the jury in this case needed to find beyond a reasonable doubt that the appellant had told a deliberate untruth which revealed a knowledge of the offence or some aspect of it and the lie was told because he knew that the truth of the matter about which he lied would implicate him in the offence before the lie could be used as an implied admission of guilt, that was not correct.  Apart from the four lies and the post-offence conduct relied on by the prosecution as evidence of consciousness of guilt, there was other evidence that was adduced that was relevant to the contentious issues of whether the prosecution had proved the appellant had the requisite intent for the offence of murder and had excluded both types of self-defence beyond reasonable doubt.  As explained in Edwards at 210 and Evans at [71], if the jury accepted there was a lie or other post-offence conduct that demonstrated consciousness of guilt, it did not have to be proved beyond reasonable doubt before it could be used by the jury as circumstantial evidence with other relevant evidence when considering whether the prosecution had proved the relevant element of the offence beyond reasonable doubt.
59. [59]
    Ground 1 is based particularly on observations in R v Mitchell [2008] 2 Qd R 142 at [26] and R v Reid [2019] 1 Qd R 63 at [83].
60. [60]
    In Mitchell, the offender had been convicted after trial before a jury of the murder of Mr Rolley and two counts of assault occasioning bodily harm whilst armed with an offensive instrument where the complainants were the offender’s partner (the partner) and Mr Hudson.  There was evidence that in the afternoon and into the evening before Mr Rolley’s body was found, Mr Rolley had been drinking with the offender, the partner and Mr Hudson.  The offender left to visit his mother.  The other three moved into Mr Rolley’s bedroom to watch television.  The offender’s mother drove the offender home and she saw him hit the partner on the head with a piece of wood.  Mr Hudson gave evidence that the offender struck the partner over the head with a didgeridoo and then hit Mr Rolley and Mr Hudson.  Mr Hudson went to sleep after this incident.  The next morning he found that Mr Rolley was dead.  The partner also gave evidence that it was the appellant who attacked her, Mr Hudson and Mr Rolley.  Mr Hudson and the partner had been intoxicated and that affected their recollection of events.  The offender maintained that he was not responsible for the attack on any of the three persons.  Blood from each of those three persons was found on the didgeridoo.  The offender gave evidence at the trial which was to the effect that he came home very intoxicated and his memory of events was vague. His evidence was inconsistent with evidence from Mr Hudson, the partner and others as to the events on the night in question.  In summarising the prosecutor’s submissions to the jury, the trial judge stated that the prosecutor submitted that the offender’s evidence was “in effect a fabrication; he told you untruths” particularly about the hour of his arrival home and what he observed when he came home.  The trial judge gave the direction in relation to the lies about what the offender said in relation to what he saw and did on his arrival home on the basis those lies were relied on by the prosecution as evidence of consciousness of guilt.  In giving the direction, the trial judge referred generally that the lie may amount to an admission of guilt or an admission that the offender was involved in the commission of the offence with which he was charged or how the lies implicated him in the death of Mr Rolley or the assaults of the two complainants.  The observations made in Mitchell must be understood in the context of a case where not only the intent of the offender was an issue but it was an issue whether he did the acts that constituted the respective offences.
61. [61]
    Williams JA stated at [26]:

“In both Edwards and Zoneff the expression was used that the lie might implicate the accused in the ‘offence with which he is charged’. Those words were apt in the factual circumstances then under consideration; essentially there was no alternative charge. But there is a complication where, as here, the offence charged is murder but there is the lesser offence of manslaughter available. In consequence it is of critical importance to identify what is in issue at the trial and what precise admission is established by the lie. If the accused admits doing the act which occasioned the death, the relevant consciousness of guilt must be to the offence of murder rather than manslaughter. Where the accused denies causing the death (say, for example, by giving evidence he was not at the scene) consciousness of guilt could be relevant to two elements of the offence. The lie could in the circumstances be relied on by the jury as an admission that the accused did the act which caused death. That would, at least, establish the offence of manslaughter. But it may be that, given all of the evidence in the case, the lies told by the accused could also amount to an admission of guilt to murder. What is important in that latter situation is that the summing up draw to the attention of the jury the fact that there are two elements involved and that the jury would have to be satisfied that the lie constituted an admission of each element before a verdict of guilty of murder could be returned.”

62. [62]
    After referring to other authorities on what is required for an Edwards direction in a trial for murder, Williams JA stated at [31]:

“It follows, in my view, that where, as here, murder is the offence charged and manslaughter is available as an alternative verdict, it is incumbent upon the trial judge, if an Edwards direction is given, to indicate the element of the offence that is said to be admitted by the telling of the lie in question. If that element is merely the implication of the accused in the killing then the jury should be instructed that the admission is so limited. If the admission is said to establish the element of intent then the jury should be so instructed and they should be warned that they ought not simply infer from the fact that the accused was implicated in the killing that he had the requisite intention.”

63. [63]
    Even though Keane JA in Mitchell considered that it was not a case in which the trial judge should have given an Edwards direction to the jury, Keane JA agreed (at [41]) with the reasons of Williams JA that, if an Edwards direction were properly given, the trial judge erred in failing to instruct the jury that lies told by the offender might show a consciousness of guilt with respect to the unlawful killing of Mr Rolley, but not necessarily murder.  The offender in Mitchell succeeded on his appeal and a new trial was ordered.
64. [64]
    The vice of the Edwards direction given in Mitchell in not differentiating whether the lie was capable of being evidence of consciousness of guilt of the offences of murder or manslaughter was not present in the appellant’s trial when the relevant directions given by the trial judge are considered in their entirety.  The supplementary directions given by the trial judge in respect of lies as consciousness of guilt made it clear that the jury could only use any of the four lies as consciousness of guilt of the offence of murder, if they were satisfied that the lie was told because the appellant knew that the truth of the matter would implicate him in the commission of the offence of murder but not manslaughter or any other offence and that he was lying because he was conscious that the truth could convict him of murder but not manslaughter or any other offence.
65. [65]
    The offender in Reid had been convicted of murder.  During the investigation, the offender had been interviewed by police several times.  He initially denied any involvement in the deceased’s death but when confronted with further evidence gathered by the police, he changed his version and then changed it again.  It was in issue whether the offender had killed the deceased.  This was an unusual case in which the trial judge had initially directed the jury they could have regard to the offender’s post-offence conduct to infer that he had an intention to kill but had later directed the jury that they could not do so because the evidence was equivocal.  The offender submitted on the appeal that the second direction was inadequate to overcome the effect of the first direction and resulted in a miscarriage of justice.  That submission was rejected and the appeal was dismissed.  Sofronoff P (with whom Morrison JA and Jackson J agreed) observed (at [81]) that confusion about the significance of evidence of post-offence conduct by a defendant can arise by restricting the consideration of the issue to the broad question of whether the evidence unequivocally demonstrates consciousness of guilt of the charged offence.  Sofronoff P then stated (at [83]):

“However, evidence of post-offence conduct is often led to prove a single fact in issue rather than the commission of a distinct crime consisting of several elements. This is so because after committing a crime a guilty person is not usually conscious, for example, of having committed an offence against s 302 Criminal Code 1899 as distinct from an offence against s 303 Criminal Code 1899 and does not then set about to behave accordingly. Rather, such a person is conscious that he or she has, for example, stabbed the deceased intending to kill and has succeeded in so doing. The guilty acts are the stabbing, the ensuing death and the killer’s consciousness of having done so intending to kill. Consequently, evidence of post-offence conduct may be led to prove one or more, or all, of those facts. Whether the conduct is particularly relevant to one such fact or element may depend upon the weight of proof of each element that must be established as well as upon the forensic choices made by the parties about the elements and facts that they wish to put in issue.”

66. [66]
    The degree of precision which a trial judge should use in identifying the issue to which lies and other post-offence conduct can be used as evidence of consciousness of guilt depends on the matters in issue in the particular trial, the manner in which the trial has been conducted and what directions are necessary to ensure that the jurors undertake permissible reasoning and do not embark on impermissible reasoning.  This is illustrated by R v Carlton [2018] QCA 294 at [114]-[120].
67. [67]
    In the appellant’s trial, the jury had been given a handout on the possible course of their deliberations that reflected the oral directions given by the trial judge and, in summary, identified the issues for the jury as follows:

1. Intention;
2. Mistake of fact;
3. Unlawfulness – Self-defence against an unprovoked assault;
4. Unlawfulness – Self-defence against a provoked assault;
5. Partial defence – provocation.

68. [68]
    The facts of how the shooting unfolded when the appellant arrived at Mr Pollock’s place were generally undisputed.  In considering whether the offence of murder was proved beyond reasonable doubt, the two contentious issues in the trial of which the jury had to be satisfied beyond reasonable doubt were that the appellant had the requisite intent for the offence of murder and that self-defence (both against an unprovoked assault and a provoked assault) was excluded.  Using any of the four lies or other post-offence conduct as evidence of consciousness of guilt was only relevant to the proof of intention and the exclusion of self-defence.  In the circumstances of this trial, the reference by the trial judge to the proof of consciousness of guilt of the offence of murder was a shorthand way of summarising how the circumstantial evidence of consciousness of guilt (if accepted by the jury) could be used by the jury with other evidence accepted by the jury in the proof of the element of the offence under consideration by the jury that remained to be proved beyond reasonable doubt at the trial.  On the evidence in this case, the two elements of the offence of murder that remained in issue were related.  If the jury was satisfied beyond reasonable doubt that the appellant at least intended shooting Mr Pollock in the shoulder when the appellant turned up at Mr Pollock’s home with his loaded gun and accompanied by three others, that was also relevant to whether the prosecution could exclude self-defence in the circumstances of the shooting that then occurred.  The prosecutor had expressly relied on the stated intention with which the appellant had gone to Mr Pollock’s home to shoot him in the shoulder as relevant when the jury were considering whether the prosecution had discharged the burden in excluding each type of self-defence.
69. [69]
    The defence strategy in the appellant’s trial was to highlight the undesirable aspects of Mr Pollock’s conduct of threatening behaviour towards the appellant and Mr Pollock’s tendency for violence known to the appellant to focus on the contention that the prosecution could not exclude beyond reasonable doubt that the appellant acted in self-defence when he believed that Mr Pollock was armed and was about to fire at him.  It was not surprising in that context that the prosecutor’s address to the jury also focused on self-defence but in reliance on the appellant’s express intention of shooting Mr Pollock in the shoulder and the circumstances in which the appellant then shot Mr Pollock.
70. [70]
    Even allowing for the jury undertaking their consideration of the evidence on the basis that the prosecution had not excluded that the appellant was operating under an honest and reasonable, but mistaken, belief that Mr Pollock had a loaded gun and was about to fire at him, this was a strong prosecution case of murder where the appellant intended to shoot Mr Pollock in the shoulder, he did as he proposed to do, and Mr Pollock died.  If accepted, that intention was sufficient to negate self-defence.  It was not necessary to address the basis on which the lies could also exclude self-defence.
71. [71]
    The issues in the trial were confined and articulated clearly for the jury by the trial judge.  The directions that were given on the use of the four lies and post-offence conduct as consciousness of guilt were adequate in the circumstances of this trial.  The appellant does not succeed on ground 1.

Ground 2 – Did the trial judge err in instructing the jury they could use the evidence of lies and other post-offence conduct to prove intent?

72. [72]
    There are two aspects in which the appellant submits the trial judge erred in giving this instruction.  The first is that the instruction should not have been given when the prosecution did not seek to make such a case.  The second is that the trial judge did not first identify intent as the issue to be proved and, instead, referred to the issue to be proved as “murder” or “the offence”.
73. [73]
    As to the first aspect, the prosecution relied on the evidence of the four lies and other post-offence conduct as consciousness of guilt.  As explained above in dealing with ground 1, that was evidence available for the jury’s consideration in respect of the contentious elements of the offence of murder.  The prosecution case was strong on the element of intent.  As was repeatedly emphasised in the prosecutor’s address, the jury would, at a minimum, be satisfied that, when the appellant turned up with his loaded .22 gun at Mr Pollock’s home, his stated intention was that he was going to shoot Mr Pollock in the right shoulder.  The submission of the appellant that it was not part of the prosecution case to rely on the four lies and other post-offence conduct that demonstrated the appellant’s consciousness of guilt as circumstantial evidence to be considered with other relevant evidence in the proof of the requisite intent for the offence of murder should not be accepted.  For any of the four lies or the other post-offence conduct to be evidence of the appellant’s consciousness of guilt of the offence of murder, the lie or conduct had to be referable to an aspect of the offence.  As set out above, the prosecutor in his address anticipated the trial judge’s directions on the four lies and post-offence conduct as demonstrating a consciousness of guilt and made the submission that “it shows a level of knowledge; that if he told the truth, it would implicate him in the commission of the offence”.  It was the appellant’s intention to shoot Mr Pollock which he had carried out which was the aspect of the offence which the appellant must have known would implicate him in the commission of the offence.  That was relevant to both outstanding elements of the offence of murder on which the jury had to be satisfied beyond reasonable doubt before they could find the appellant guilty of that offence.  It was appropriate that the trial judge instructed the jury that they could use evidence of consciousness of guilt in dealing with the element of intent, despite that it was not a point emphasised by the prosecutor in his address to the jury.  That was no doubt explicable by the focus of the prosecutor’s submissions on excluding self-defence in the context of a trial where the appellant’s focus was that he was acting in self-defence and where the statements made by the appellant in his police interviews that he intended to shoot Mr Pollock in the right shoulder otherwise gave rise to a strong prosecution case on the appellant’s intention to do grievous bodily harm to Mr Pollock.
74. [74]
    As to the second aspect, that was dealt with by the trial judge’s articulation of the issues of which the jury had to be satisfied about beyond reasonable doubt before bringing in a verdict of guilty of murder and the process the trial judge had explained to the jury of considering whether the evidence they accepted proved each of the elements of the offence beyond reasonable doubt in order to reach that verdict.
75. [75]
    There was no error made by the trial judge in the instructions given to the jury that are the subject of ground 2.

Ground 3 – Did the trial judge err in directing the jury they could use the appellant’s statements about where he disposed of the gun as a lie told out of consciousness of guilt of murder?

76. [76]
    The appellant submits that the fourth lie of the four lies which related to where the appellant said he disposed of the gun was incapable of demonstrating consciousness of guilt of the offence of murder and therefore the trial judge’s failure to withdraw that lie from the jury’s consideration of whether it was evidence of consciousness of guilt caused a miscarriage of justice.
77. [77]
    The prosecutor addressed on the fourth lie as a lie that showed consciousness of guilt without any objection from the appellant’s trial counsel.  There were obvious difficulties with relying on the lie as such as it was told in the interview with Detective Weare after the appellant had recanted on the other three lies in the same interview.  The prosecutor only relied on it as a lie as to the location for the disposal of the gun.  The appellant in his subsequent interview with Detective Thomas had another version about the disposal of the gun that suggested that it was not the appellant himself who disposed of the gun and he did not reveal the identity of the person who did.  The varying versions that the appellant gave about the disposal of the gun raised a real issue about whether the fourth lie had anything to do with the appellant’s fear that telling Detective Weare the truth about where the gun was disposed of would implicate him in the offence of murder.  This was recognised by the trial judge who highlighted for the jury in the directions set out at [40] above why they may find it difficult to be satisfied that the appellant lied about where he disposed of the gun because he was conscious that the truth would implicate him in the commission of the offence of murder.
78. [78]
    It would have been preferable for the trial judge to raise with the prosecutor and the appellant’s trial counsel whether, as a matter of fact, the fourth lie was incapable of demonstrating consciousness of guilt of any element of the offence of murder.  As this concerned a matter of fact rather than law, if the prosecutor had refused to re-categorise the fourth lie as a lie as to credit rather than consciousness of guilt, then the trial judge could have done no more than was done in the directions given in respect of the fourth lie. Assuming that it was an error for the trial judge not to withdraw the fourth lie as a lie told in consciousness of guilt, even in the absence of a request from the appellant’s trial counsel, the directions that the trial judge did give in relation to the fourth lie had the effect of drawing to the jury’s attention the difficulty in the fourth lie meeting the three conditions required before the jury could conclude it was a lie told by the appellant because the truth of where he disposed of the gun would implicate him in the offence of murder.  This had the effect that such an error (as asserted by the appellant) was not material in that it could not have realistically affected the reasoning of the jury to its verdict: Brawn v The King [2025] HCA 20 at [3] and [8]-[12].  In the context of this trial where the focus of the jury’s attention was on the evidence of what happened when the appellant shot Mr Pollock, the asserted error of the failure of the trial judge to withdraw the fourth lie from the jury’s consideration as a lie told in consciousness of guilt did not constitute a miscarriage of justice.

Order

79. [79]
    The appellant was convicted of murder on a strong prosecution case.  It will be apparent from these extensive reasons dealing with the grounds of appeal that the pro bono counsel and solicitors who have acted for the appellant in bringing forward arguments on this appeal have ensured that the process of the appellant’s trial has been thoroughly scrutinised.  The efforts of the pro bono lawyers in contributing to the administration of justice in this way are acknowledged.
80. [80]
    The order which should be made is: Appeal dismissed.
81. [81]
    BROWN JA:  I agree with Mullins P.
82. [82]
    WILSON J:  I agree with Mullins P.