This decision considered an appeal against conviction for murder. The appellant gave various inconsistent versions to police and an Edwards direction was given to the jury. On appeal the appellant sought to take issue with the directions given to the jury as to the use to which evidence of post-offence conduct could be put to prove intention even though intention was not in issue at trial. The court found that it is not open to an appellant to complain that adequate directions were not given about a matter that was not in issue at trial. The appeal was dismissed.
Sofronoff P and Morrison JA and Jackson J
6 April 2018
The appellant was convicted of murder following a jury trial. . The key Crown witness, Austasia Kapteyn, was his girlfriend at the time of the killing with whom he lived on a property in Far North Queensland. –. The deceased was a recent acquaintance. . He was stabbed while visiting the couple and his body disposed of in bushland on the property. , . The appellant took possession of the deceased’s belongings, including his vehicle, laptop and credit card. –.
At trial, Kapteyn gave evidence of what she heard and saw at the time of the killing, including the appellant returning to the house with a knife in his hand and “blood all over him”. –. The appellant burned items and bleached others, including the knife. . He demonstrated to Kapteyn how he had killed the deceased, including by stabbing him in the ribs. .
The appellant gave three versions to police, making further admissions to his involvement as new evidence came to light. Eventually, he gave a version that involved the deceased wielding a metal baseball bat and the appellant stabbing him in the back. . The appellant did not give evidence at trial but the defence case advanced a fourth version, by which Kapteyn had stabbed the deceased in the back. .
The learned trial judge initially directed the jury that they could use the appellant’s post-offence conduct to infer an intention to kill, but later that they could not do so because the evidence was equivocal as to intention. The appellant argued the second direction was inadequate to overcome the effect of the first direction and resulted in a miscarriage of justice. .
President Sofronoff, with whom Morrison JA and Jackson J agreed, rejected this argument on two bases. First, as a whole the directions given were adequate and appropriate to ensure the jury understood the limited way they could use the lies and post-offence conduct. . Second, that the directions were too favourable to the appellant, rather than prejudicial. . The Crown case depended entirely upon the jury’s acceptance of the evidence of Kapteyn, which indicated an intentional killing. Once the jury accepted her evidence, as it must have, there was no basis for a verdict of manslaughter. .
The reasons review relevant case law and principles, noting that evidence of post-offence conduct may be led to prove a single fact in issue, rather than the commission of a particular crime. –, –. Such evidence may well be neutral as to proof of intent but still be cogent evidence to prove some other element or fact in issue. . Consequently, when considering evidence of post-offence conduct as proof of guilt, it is essential first to identify the fact sought to be proved by that evidence. .
In considering the manner in which the case had been conducted, his Honour concluded:
“… in a case in which both parties have litigated upon the footing that the accused did not kill the deceased person, and in which no hypothesis consistent with manslaughter has been raised on the evidence led by either prosecution or defence, it is not open to an appellant to argue that evidence of post-offence conduct was equivocal as to proof of intention, a fact that was never in issue by either party, and then to complain that adequate directions were not given about something that was not really in dispute.” .
The appeal was dismissed. –.
K W Gover of Counsel