The appellant was convicted of murder after a jury trial. At trial, the killing itself was not in issue, but intent was. The prosecution led evidence of post-offence conduct. Of note in the appeal was the trial judge’s directions to the jury on how they could use the post-offence conduct. The Court’s reasons for dismissing the appeal include a detailed review of authorities on the use of post-offence conduct in distinguishing between murder and manslaughter.
Morrison and Philippides JJA and Bowskill J
30 October 2018
The appellant was convicted after a jury trial in the Supreme Court of murder. In this appeal, the Court of Appeal was, notably, faced with the question of whether the trial judge had erred in his Honour’s directions to the jury regarding the appellant’s post-offence conduct. .
At trial, the fact the appellant caused the deceased’s death was not in issue. . Rather, the issues before the jury were whether the appellant had the requisite intention to be convicted of murder, and if any defences were available to him. . Part of the Crown’s case against the appellant was that his post-offence conduct – which included hiding and then burning and burying the deceased’s body and sending text messages purporting to be from the deceased – showed that he had intended to kill the deceased. .
In his Honour’s summing up, the trial judge made directions which emphasised that, before the jury could use it as an indication of the appellant’s guilt, they had to be satisfied that the appellant’s conduct arose because he knew he was guilty of murder, and “not some other misconduct”. , . The appellant’s submissions in relation to these directions were twofold. First, that they were confusing as to the use of the evidence. Secondly, that they did not sufficiently instruct the jury that they had to reject the possibility of unintentional killing before they could use the conduct as indicating the appellant’s guilt of murder. .
Justice Bowskill (with whom Morrison and Philippides JJA agreed , ) noted, referring to R v Mitchell  2 Qd R 142,  and R v Ali  QCA 331, , that the starting point is to identify what is in issue in the trial; if causing the death is admitted, ‘the relevant consciousness of guilt must be to the offence of murder rather than manslaughter’. , .
Her Honour then discussed the High Court’s decision in R v Baden-Clay  HCA 35, , where the High Court concluded that “[t]here is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter”. . Rather, an accused may go to such lengths in their post-offence conduct as to lead to the conclusion that they are guilty of the more serious offence. .
In the instant case, given that causing death was accepted, Bowskill J found that it was not necessary for the trial judge to make explicit reference to manslaughter in his Honour’s directions. . Further, after detailing the extent of the accused’s post-offence conduct, her Honour found it was “open to the jury… to consider that conduct to be completely out of proportion to the level of culpability involved in an unintentional or accidental killing”. . In these circumstances, and given the directions about post-offence conduct were made in the broader context of the trial judge’s directions regarding the appellant’s intention, her Honour found that they would not have caused confusion or opened the door to impermissible reasoning. .
In the result, the appeal was dismissed. .