R v Webb-Italia[2025] QCA 51

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On the evening of 23 September 2020, the appellant stabbed and killed a young man, Mr Harris, outside a bar on Cavill Avenue in Surfers Paradise.  He was convicted of the murder of Mr Harris on 20 May 2024, following a 10 day trial by jury.^[1]  The appellant admitted that he stabbed Mr Harris to his abdomen with a knife.  He pleaded guilty to manslaughter at the start of the trial.  That plea was not accepted by the Crown, and so the trial proceeded on the charge of murder.  The only issue in the trial of the appellant was whether the Crown had proved that, at the time the appellant stabbed Mr Harris, he intended to kill him, or cause him grievous bodily harm.  In that regard, a particular issue for the jury to consider was the effect of intoxication.
2. [2]
   The appellant appeals his conviction on the ground that “there was a miscarriage of justice arising from the learned trial judge’s directions concerning the absence of certain evidence”.^[2]  Some further context is necessary in order to understand the nature of the appellant’s complaint in this regard.
3. [3]
   The evidence in the trial included evidence from various witnesses about the appellant’s use and abuse of both prescription drugs and illicit drugs, including on the day of the offence; CCTV footage of the incident during which Mr Harris was stabbed, at approximately 8.56 pm on 23 September 2020;^[3] as well as a recording of the appellant’s interview with the police in the early hours of the morning on 24 September 2020.^[4]
4. [4]
   For the purposes of the appeal, and at the request of both parties, we have watched the whole of the recorded interview. The interview commenced at 1.24 am on 24 September 2020, with the police officers advising the appellant of his rights.  Other evidence suggests the appellant had been in custody since about 9.30 pm the night before.  When asked if there was anyone he would like to contact, the appellant said he would like to contact his mum.  The interview was immediately suspended, at 1.30 am, to allow that to occur.  The interview recommenced at 1.53 am, after the appellant had what was described as a “long conversation” with his mother.  The interview continued until 3.29 am.
5. [5]
   The appellant told the police at the start of the interview (after speaking with his mother) that he has “bipolar”, anxiety and depression as well as epilepsy.  He said that he saw “psychologists and stuff” for those things, and that he was on Valium, for his epilepsy.  He also said that he had seen a doctor “last week”, and been prescribed “something”, but that his mum had not filled the new prescription yet.^[5]  He agreed, however, when asked, that he understood everything the police officers were saying to him.
6. [6]
   At the start of the interview, the appellant was asked general questions about what had happened during the afternoon and leading into the evening of 23 September 2020.  He said he had been hanging out with his brother and “his missus” at their apartment.  He said that his brother started getting calls and messages from someone who was “throwing threats” and telling him to “come down”.  The appellant and his brother headed to Surfers Paradise, to confront the person.  The appellant said as soon as they walked into Surfers, “it just kicked off, like a fight just broke out… [and] then knives got pulled…” (AB 926).  The appellant gave a relatively detailed account of what occurred, and where it occurred.  The appellant admitted he had a knife (AB 929), but said he was handed the knife by someone else (whom he could not name) just as the fight was kicking off (AB 933).  He denied stabbing the man, and said he only “sliced” him (AB 932). The appellant also referred, in this earlier part of the interview, to being handed a black knife in a case, in the pokies room of the nearby beer garden, as he was about to leave the area (after the fight).  He said that he dropped it in the corner of the beer garden before leaving (AB 931-932).
7. [7]
   The police had already obtained some of the CCTV footage by the time of the interview – including the footage of the actual stabbing incident.  After asking the appellant general questions about what had occurred, the police went through that footage with the appellant in quite some detail, including asking him to identify the various people shown in the footage.   By reference to particular parts of the footage, including moments when the appellant is obscured behind a tree, the appellant reiterated his version about being handed a knife just before Mr Harris was stabbed (AB 948).   The footage also shows another person – after the stabbing of Mr Harris has occurred – holding a big knife, that he puts into a black case (or sheath).  The appellant is asked about that, and he says “That would’ve been the one I’ve been handed in the pokies room, I think” (AB 954).  The police officer then asks about the knife the appellant had earlier (as shown in the footage), and the appellant says “That’s what I’m confused on”… “I’ve obviously, I must’ve blacked out and…” (AB 955).
8. [8]
   The questions continue, and the appellant is asked whether there is any way he would be able to identify who the person is that handed him the knife as he was walking up the street?  The appellant says “No, it happened too quickly.  It was so close… I was just, I was ready to just punch on you know like, um, make sure my brother was okay”; and said he just could not recall who handed him the knife (AB 957).
9. [9]
   A short time later, the appellant is asked if he recalls “stabbing this guy”.  The appellant says that his brother was punching the guy, and:

“Then I like, I started punching him too.  And then, um, I think someone came from behind us.  And like I said, ‘cause I don’t know like even half the group that was with us.  So, I wasn’t sure, you know, who was on and, um, yeah.  That’s when like a fair few people pulled knives out and, yeah… That’s … like… when… when I fight, I like don’t do it regularly obviously.  But I black out. … I think it’s from my bipolar…. Um, but and then like, you know, I snapped back, ah, into reality once, once it’s over…” (AB 959).

10. [10]
    Later again in the interview, one of the police officers returns to the appellant’s version, of being handed a knife just before the assault of Mr Harris, and asks him again who gave him the knife (AB 979).  It is apparent from watching the interview that the police officers were questioning the plausibility of the appellant’s account, having regard to what can be seen in the footage.  The appellant again says he does not know, and adds a new detail which is that someone “grabbed it back off” him afterwards (AB 980).  When asked if he knows where that knife is now, the appellant said:

“I said that just got taken back off me, I just said that… I don’t know [who].  Like I said, I black out when I fight…” (AB 980).

11. [11]
    The appellant repeated this a bit later in the interview, when being pressed on the details of some of the things that he was saying:  that he could not recall certain things because he “blacked out” (AB 986, 989 and 1001).
12. [12]
    As the interview was coming to an end, the police officers asked some general questions about whether the appellant had any complaints about how they had treated him, and whether he had been threatened or induced in any way.  He said he had no complaints.  He confirmed, when asked by the police, that he had not been drinking or taken any drugs (by inference, before the interview) – save that, the appellant said, “I told the lady [presumably another officer, or nurse, prior to the interview commencing] … just some weed… And I had my medication”.  The following exchange then occurs:

“[Officer]:  I guess what I’m saying is that you haven’t taken anything that would warp or distort you being able to answer those questions.  So, everything you’ve asked tonight and answered is …

[Appellant]:  [indistinct] Yeah, no, no.  So, yeah.  The Valium could’ve also helped my blackout, you know.” (AB 1002)

13. [13]
    In terms of how the appellant speaks, and appears, during the interview, we note that the appellant mumbles at times during the interview, and is asked to speak up or repeat things a number of times by the police officers.  The interview takes place in the early hours of the morning – and so it would be reasonable to infer he is tired, and probably sleep deprived.  Otherwise, he sits up and appears to engage with the officers’ questions during the whole of the interview, at times giving quite a specific and detailed account.  The references to “blacking out” are made in the context of the appellant saying that he is confused about something, or cannot recall something, which the officers are pressing him about – in particular, his version of being handed a knife just before Mr Harris is stabbed, which is not consistent with what is visually observable in the CCTV footage.
14. [14]
    We have also watched the particular portion of the CCTV footage in which the stabbing of Mr Harris is recorded (exhibit 7).  There is no doubt, having regard to that footage, that the appellant was fully volitional at the time he stabbed Mr Harris.  To the extent he spoke about “blacking out” in the interview with police, that can only be a reference to a lapse in memory.
15. [15]
    One of the officers who conducted the interview, Detective Sergeant Sheraton, gave evidence at the trial.  The cross-examination of him, by trial counsel for the appellant, was limited to establishing how long he had been a detective, at the time of the interview, and establishing that the other officer, with whom he conducted the interview, was from the homicide squad.  The lead investigator, Detective Senior Constable McCafferty, also gave evidence at the trial.  In cross-examination of him by trial counsel for the appellant, DSC McCafferty agreed that the police did not drug test the appellant on 23 or 24 September 2020.  No questions were asked of either officer about whether they had undertaken any other investigations about the claims made by the appellant during his interview about medical conditions and blackouts or, if not, why.
16. [16]
    In his closing address to the jury, trial counsel for the appellant outlined the evidence from other witnesses about the appellant’s drug use, and state of intoxication on the evening in question, as well as evidence given by Dr Thompson, the forensic pathologist, about the effect various drugs could have, alone and in combination.  He referred also to what the jury could make of how the appellant spoke and appeared, during this interview with the police.  He then said:

“You heard yesterday there was no drug testing carried out by the police on [the appellant], and there’s really no question that they, being at the Southport Police Station, wouldn’t have had access to drug testing equipment. But after sitting in a room with him for two hours, from 1.24 am, no one thought it would be a good idea just to at least test him. Can I put this proposition to you: imagine if [the appellant] was driving a motor vehicle at 1.24 am on the morning of the 24^th of September 2020, and a Queensland police officer pulled him over and heard him talking the way he was there [a reference to how the appellant was talking during the interview]. Do you reckon he would’ve escaped going on drug testing at all? And that’s driving a car, not being involved in an accident or anything like that. So these two senior police officers obviously must have been oblivious to the fact that he was intoxicated or under the influence of drugs. …

  So that’s – we’re stuck in this situation that you have before you what the police officers would have seen over the two hours. You have the bedraggled person who we saw in the photograph before them. You’ve got the fellow who is not making sense over two hours, who is beyond all reasonable doubt intoxicated when he’s spoken to, and they seem to have missed that. So the fact that they didn’t test him when they could have is something which I’ll say is incomprehensible.” (AB 119) [emphasis added]

17. [17]
    Towards the end of his closing address, trial counsel for the appellant said this:

“…on a number of occasions throughout the course of the interview, [the appellant] referred to the fact that he suffered from blackouts. It may well have been from the conditions, and I think he even put that down to bipolar when he was talking to the police. And so he indicated on the morning of the 24^th of September of 2024 [sic] on a number of occasions he had these blackouts. So between the 24^th – the morning of the 24^th of September of 2020 and the 15^th of May of 2024 – that’s the day that the Crown closed its case – a period of 1329 days have passed where the prosecution were well aware of what [the appellant] had had to say in his interview where he identified his medical conditions and he also identified the subject of blackouts.

Over that period of time, police have had ample opportunity to examine his claims, as has the prosecution. You would be aware that there are powers – the police execute search warrants, contained his medical records to try and disprove what he had to say. But it appears that there’s been a deafening silence in the prosecution case of any evidence that would disprove what he had to say to the police 1329 days ago.” (AB 132) [emphasis added]

18. [18]
    At the end of trial counsel’s address, there was a brief adjournment, before the trial judge commenced the summing up.  The following exchange took place between the trial judge and the prosecutor:

“MS KELSO:  … Your Honour, in terms of the draft [of the summing up] that you provided this morning, in relation to the first part when your Honour talks about how the lawyers’ final addresses are not evidence, could I ask that your Honour add, effectively, a Browne v Dunn point, so to speak, in relation to something Mr Kimmins said. That being that the police had the power to drug test Mr Webb-Italia and did not. In my submission, your Honour ought to say that – or something to the effect that - - -

HER HONOUR: Sorry. Just give me the page you’re at.

MS KELSO: Page 4. In the final paragraph.

HER HONOUR: Yes.

MS KELSO: That the evidence is simply that they did not drug test Mr Webb-Italia. There’s no other evidence about whether they had the capacity or why they did not drug test him.

HER HONOUR: So tell me where you want it put.

MS KELSO: Perhaps something in terms of – because - - -

HER HONOUR: But where do you want it put?

MS KELSO: After, perhaps, the final paragraph on page 4.

HER HONOUR: So:

They were their persuasive arguments. You can take them into account, but the extent to which you do so is a matter for you.

Yes. And so what do you want to say?

MS KELSO: Something towards the point that Mr Kimmins submitted that police had the power to drug test Mr Webb-Italia. No – there was no evidence of this presented during the trial. The evidence is only that they did not test him.

HER HONOUR: Why do I need to say that?

MS KELSO: Because, in my submission, Mr Kimmins submitted that police had the power to do so and averred to it with respect to their power so far as drug driving is concerned - - -

HER HONOUR: But you’re just emphasising the point. How do – how does that take the point any further?

MS KELSO: In my - - -

HER HONOUR: How does it clarify it?

MS KELSO: In my submission - - -

HER HONOUR: I made it clear to them the evidence is the evidence. That’s it. You can’t speculate on what else could have been done. Maybe I should just say at that point, “The evidence is what it is. Don’t speculate on why something hasn’t been produced to you.”

MS KELSO: I’d be quite content with that, please. Thank you.” (AB 833-834)

19. [19]
    After further exchanges about other aspects of the draft summing up, not involving the appellant, the trial judge asked all counsel whether there were any other matters they wished to raise.  Trial counsel for the appellant said he had nothing to raise (AB 837).
20. [20]
    The learned trial judge gave a detailed and careful summing up.  It was a complex matter, including because it involved multiple defendants and involved reliance upon the party provisions in ss 7 and 8 of the Criminal Code.  The summing up included the direction always given by trial judges, that the jury is required to reach their verdict(s) on the evidence, and only on the evidence.  There is a standard form of words suggested in the benchbook for the first part of this direction – which includes an explanation of what evidence is, and what is not evidence.  The standard direction includes, in the latter category, the statement that the lawyers’ final addresses were not evidence.  In that regard, towards the end of explaining what the evidence is, and is not, the trial judge said this:

“Now, the lawyers’ final addresses were not evidence. They were their persuasive arguments as to what you consider – sorry, what they consider your verdicts should be, and you can take those argument into account in evaluating the evidence. But the extent to which you do so is entirely a matter for you. The evidence is what is before you. You might have heard arguments about why was this not done and why was that not that done. The evidence is what the evidence is. We cannot speculate on why something did or did not happen. We know what the evidence is. That is what you decide on.” (AB 143) [emphasis added]

21. [21]
    No complaint is made about that part of the summing up.
22. [22]
    The trial judge also gave appropriate directions to the jury about the element of intention, for the charge of murder and, in that context, about intoxication (AB 156-159), about which no complaint is made.
23. [23]
    The particular part of the summing up about which complaint is made on this appeal arose during the trial judge’s summary of the closing arguments of the appellant’s trial counsel.  The trial judge referred to counsel’s submissions about the law in relation to intoxication, and his submissions about the appellant’s drug use generally, as well as on the day in question, and then said:

“It was part of his evidence [in context, this is a reference to Mr West, a friend of the appellant’s, who was with him on the day of the stabbing] that [the appellant] was heavily intoxicated when he left the unit on the evening on the 23^rd of September 2020. Dr Thompson [the forensic pathologist] then provided expert evidence in relation to the effect of each of those drugs on [the appellant] or the possible effect of each of those drugs on [the appellant], and all of the – and what the effect was if you take all of those drugs at the same time.  Mr Kimmins [trial counsel for the appellant] also pointed out that [the appellant] was only 18 years old and of slight stature. He also stated it was not challenged by the prosecution that, as at the 23^rd of September, [the appellant] was unmedicated for some of his conditions and he was suffering from bipolar disorder, depression, anxiety, epilepsy and asthma. He [that is, Mr Kimmins] reminded you that the prosecution has not adduced any evidence as to the effect on the brain and body of the combination of his abuse of prescription drugs together with his medical conditions. As I said to you before, the evidence is the evidence. We – we are not going to speculate on why there was not some particular part of the evidence.

So [the appellant] has been in police custody since the 23^rd of September, approximately 25 minutes after the incident. He says that the recording of the interviews provides irrefutable proof that he was significantly affected by substances at the time of the interview. …” (AB 183) [emphasis added]

24. [24]
    No redirections were sought by any counsel at the end of the summing up.
25. [25]
    It is the addition of the two sentences emphasised in bold in the passage above that is complained of in this appeal.  The argument is that by adding those two sentences, in the context of summarising trial counsel’s closing address:

    1. the trial judge “cut short”, or diminished, the effect of the defence case; and
    2. it became necessary for the trial judge to give a “full Jones v Dunkel” direction.
26. [26]
    On the hearing of the appeal, counsel for the appellant (who was not his counsel at the trial) said there could be no complaint of any miscarriage of justice if the two impugned sentences had not been included.  But, having included those two sentences, he submits it was then incumbent on the trial judge to go on, and give a full Jones v Dunkel type direction, along the following lines:

“… As I said to you before, the evidence is the evidence.  We – we are not going to speculate on why there was not some particular part of the evidence.

  However, it is the function of police to investigate alleged offences objectively, and to attempt to collect and assemble all relevant evidence.  Police are required to be objective and attempt to uncover all relevant evidence that can be reasonably assembled, whether it is inculpatory or exculpatory.

  You have heard no explanation for the absence of any evidence concerning the impact of Mr Webb-Italia’s drug use, nor of his asserted mental health diagnoses or assertions of blackouts.

As the onus is always on the Crown to prove intent, you may find that you can more readily accept the evidence given by Mr Webb-Italia in his record of interview as it relates to his drug use, medical conditions and assertions of blackouts, as is not contradicted by any further evidence.”

27. [27]
    Counsel for the appellant submitted that, “the failure to include reference to the second limb of the Jones v Dunkel direction (may allow you to more readily accept uncontradicted evidence etc) not only disadvantaged the appellant in the sense that the jury were not provided a powerful direction in the appellant’s favour; it also detracted from the appellant’s main contention and may have left the jury with the impression that Mr Kimmins’ reference to the failure to make open and obvious investigations was irrelevant, if not improper”.
28. [28]
    The submission for the appellant on this appeal is wrong as a matter of law.
29. [29]
    As Gaudron and Hayne JJ said in Dyers v The Queen (2002) 210 CLR 285 at [6] and [17]:

1. “[6]
   … as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.
2. [17]
   As was held in R v Apostilides,^[6] it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. Nor is it necessary to consider whether some direction of this kind can be given when a party, who has called a witness, does not ask questions of that witness about a particular topic.^[7]”

30. [30]
    Earlier, in RPS v The Queen (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ contrasted the application of the rule in Jones v Dunkel in civil and criminal trials, saying:

1. “[26]
   In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case^[8] and that:^[9]

‘where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.’

1. [27]
   By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen:^[10]

‘[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.’ (Emphasis added)

1. [28]
   In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.
2. [29]
   If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor ‘has the responsibility of ensuring that the Crown case is presented with fairness to the accused’^[11] and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.”^[12] [emphasis added]

31. [31]
    This point was reiterated in Mahmood v Western Australia (2008) 232 CLR 397 at [27], where Gleeson CJ, Gummow, Kirby and Kiefel JJ said:

“It was neither necessary nor appropriate for the trial judge to direct the jury that an inference adverse to the case for the prosecution could be drawn because the presence of blood in the appellant’s trouser pocket had not been the subject of evidence by the prosecution's witnesses. In the joint reasons in RPS v The Queen^[13] it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v The Queen.^[14]”

32. [32]
    In the present case, there was no particular witness identified, as someone who might have been expected to be called (by the prosecution), but who was not.  There was not said to be, and could not have been said to be, any breach of the prosecutor’s duty to call all material witnesses.  All that was before the jury was a submission by trial counsel for the appellant suggesting that the police could have undertaken further investigations in relation to the things the appellant said during his interview, but had failed to do so.
33. [33]
    In those circumstances, it would have been incorrect for the trial judge to direct the jury that they could “more readily accept the evidence given by [the appellant] in his record of interview as it relates to his drug use, medical conditions and assertions of blackouts”, because that is contrary to the authorities just referred to.   To give such a direction would invite the jury to speculate not only about why there was not some additional evidence before them, but also about what the evidence of some unidentified witness or witnesses might have been, which would have been wrong.^[15]
34. [34]
    All that could have been said is precisely what the trial judge did say to the jury – that “the evidence is the evidence” and that they should not “speculate on why there was not some particular part of the evidence”.
35. [35]
    This may explain why no one, least of all experienced trial counsel for the appellant, (a) submitted to the trial judge that any further direction, such as is now suggested by reference to Jones v Dunkel was required; or (b) took any issue with what the trial judge did say.
36. [36]
    The separate submission, that adding those two sentences, in the context of summarising defence counsel’s closing argument, “cut across” that argument, or in some way weakened the force of it, is not accepted.  The two impugned sentences did no more than repeat the general direction, which had already given to the jury – and about which no complaint is, or could be, made – that they were required to decide the case on the evidence, and not to speculate about why something did not happen.   The two impugned sentences could not even be described as a comment in relation to the submission made by trial counsel,^[16] and certainly did not “create any risk of imbalance by depriving the jury of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence”.^[17]
37. [37]
    There was no miscarriage of justice caused, by the inclusion of the two sentences complained of.
38. [38]
    There are two further matters to mention.
39. [39]
    In the course of the summing up, the trial judge directed the jury in relation to what the prosecution said were lies told by the appellant during his police interview, namely: that he was handed the knife on the footpath of Cavill Avenue, that the deceased man’s group had knives, and that he did not stab Mr Harris (AB 149).  The jury were directed in terms that, if satisfied these were deliberate lies, concerned with some circumstance connected with the offence, and that the appellant lied because he was conscious the truth could convict him of unlawfully killing the deceased, they could use the lies as evidence going to prove he was guilty of that offence – that is, manslaughter.  The trial judge rejected a submission earlier made by the Crown that the jury should be directed that they could use these lies as evidence of consciousness of guilt of an intentional killing.  In rejecting that argument, the trial judge expressed some concerns about the state of the appellant’s mind at the time of the interview, including because he was clearly tired, given the time when it was conducted; his self-reporting about bipolar disorder and epilepsy, and references to not having medication; and that, when the interview first starts, it seems the appellant is not aware there has been a death (AB 760-761; 777).  The trial judge was not persuaded it could properly be said that, if the appellant deliberately lied during the interview, he did so out of consciousness of guilt of an intentional killing.
40. [40]
    In written submissions in support of this appeal, the appellant submits “It was obvious that the Learned trial Judge was troubled by the lack of any contradictory evidence on the Crown case concerning the Appellant’s intoxication, asserted medical conditions and the real prospect of temporary blackout at the time of the stabbing”, referring to what appears at pages 760 to 761 of the appeal record.^[18]  That analysis of the trial judge’s concern is not accepted.  Her Honour did not express any concern about a “lack of contradictory evidence” – the concern her Honour expressed was about whether it was appropriate to go as far as to say the jury could use lies told by the appellant in his police interview as showing his consciousness of guilt of an intentional killing, given the question marks about his state of mind at the particular time.
41. [41]
    There is another aspect of the appellant’s submissions which is incorrect.  In oral submissions, counsel for the appellant submitted that there was:

“a very telling exchange between [the trial judge] and the Crown.  The Crown seek an Edward direction with respect to this blackout evidence, and they say, well, that’s a lie.  That’s a lie.  It’s an admission of guilt that he blacks out, and [the trial judge] sees it exactly the opposite.  She’s very concerned that there’s no evidence in rebuttal, even so far as taking judicial notice of the fact that those things seem consistent with an epileptic blackout. 

They’re comments made by [the trial judge] in the application for the Edwards direction.  And so – of course, the Crown don’t get the Edwards direction with respect to lies made in the record of interview, but it’s such a crucial point when it comes to the failure of a Crown to call evidence …”^[19]

42. [42]
    It is apparent from the transcript of proceedings at the trial that:

    1. the Crown did not submit that the reference by the appellant to “blacking out” was a lie – the three lies which the Crown sought to rely on were (1) that he was handed the knife on the footpath of Cavill Avenue, (2) that the deceased’s group presented knives towards the appellant’s group and (3) that he did not stab the deceased;^[20]
    2. accordingly, the trial judge did not make any ruling about whether that was a lie or not – because it was not necessary to do so;
    3. as already noted, the concern expressed by the trial judge was about whether it was appropriate to give the Edwards direction in terms of consciousness of guilt of an intentional killing, as opposed to an unlawful killing (manslaughter) – given the question marks about the appellant’s state of mind during the police interview, and apparent lack of awareness that the deceased man had died, both in terms of whether it could be said he deliberately lied and, if he did, whether that could be said to be out of a consciousness of guilt of intentionally killing Mr Harris;^[21] and
    4. it is simply incorrect to say that the trial judge was “very concerned that there’s no evidence in rebuttal”.
43. [43]
    The submissions in relation to these matters do not affect the conclusion reached in relation to the appeal.  They are noted by way of correction only.
44. [44]
    The appeal should be dismissed.