Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Edwards v R [2022] NSWCCA 22 Hearing dates: 20 October 2021 Date of orders: 14 February 2022 Decision date: 14 February 2022 Before: Bathurst CJ at [1]; Rothman J at [7]; Dhanji J at [8]. Decision: Appeal dismissed. Catchwords: CRIME — Appeals — Appeal against conviction — Where applicant convicted of murder — Where alternative verdict of manslaughter left to jury —Circumstantial case CRIME — Appeals — Appeal against conviction — Directions to jury regarding use of evidence of lies and post offence conduct — Inference of consciousness of guilt — No miscarriage as evidence was not intractably neutral as between murder and manslaughter — No miscarriage as not seeking the direction was objectively justifiable as a rational forensic decision CRIME — Appeals — Appeal against conviction — Miscarriage of justice — Directions to jury regarding reasonable hypotheses consistent with manslaughter — No miscarriage of justice as there was no need to explain further hypotheses CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Evidence supported the view that the applicant acted with intent to inflict at least really serious injury — Verdict of guilty supported on the whole of the evidence Legislation Cited: Crimes Act 1900 (NSW), s 18(1)(a) Criminal Appeal Act 1912 (NSW), ss 5, 6 Evidence Act 1995 (NSW), s 20 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: ARS v R [2011] NSWCCA 266 Darwiche v R [2011] NSWCCA 62 Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 Greenhalgh v R [2017] NSWCCA 94 King v The Queen (2012) 245 CLR 588; [2012] HCA 24 La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Meakin v R [2018] NSWCCA 288 Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 Mulvihill v R [2016] NSWCCA 259 Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Birks (1990) 19 NSWLR 677 R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208 R v ITA (2003) 139 A Crim R 340; [2003] NSWCCA 174 R v Miah [2003] EWCA Crim 3713 R v Sievers (2004) 151 A Crim R 426; [2004] NSWCCA 463 R v Tillot (1991) 53 A Crim R 46 R v Trebeck [2018] QCA 183 Rogerson v R (1992) 65 A Crim R 530 Sheen v R (2011) 215 A Crim R 208; [2011] NSWCCA 259 Steer v R (2008) 191 A Crim R 435; [2008] NSWCCA 295 Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Category: Principal judgment Parties: John Wallace Edwards (Applicant) Regina (Crown) Representation: Counsel: M Higgins, S Lawrence, L Opper (Applicant) B Hatfield (Crown) Solicitors: Sydney Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2017/184174 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: R v Edwards (No 3) [2019] NSWSC 1815 Date of Decision: 22 November 2019 Before: R A Hulme J File Number(s): 2017/184174 Judgment 1. BATHURST CJ: I have had the advantage of reading the judgment of Dhanji J in draft. 2. I agree with the orders proposed by his Honour and would only make the following additional remarks. 3. In [67] of his judgment, Dhanji J cites the decision of the High Court in Orreal v The Queen [2021] HCA 44 ("Orreal") as authority for the proposition that in considering the application of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW), rather than applying the test in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, the Court does not consider whether any doubt is resolved by the advantage held by the jury, but rather that the Court's capacity to be satisfied beyond reasonable doubt is impacted by the natural limitations inherent in proceeding wholly or substantially on the record. 4. This proposition, which finds particular expression in the judgment of Gordon, Steward and Gleeson JJ in Orreal at [44], does not involve applying a different approach in considering guilt for the purpose of the proviso to that adopted in determining whether a verdict was unreasonable. Rather, it recognises that in the former case, consideration must be given to the question of whether the jury's verdict could have been affected by what was said to have constituted an error or miscarriage of justice. If that conclusion is reached there is no room for the operation of the proviso. So much was made clear by Kiefel CJ and Keane J in Orreal at [22]. As their Honours pointed out, the contrary approach would duplicate the function of the jury. 5. Thus, in Orreal it was not appropriate to apply the proviso as the admission of the irrelevant evidence had the capacity to influence the jury as to the outcome, particularly in circumstances where no direction was made as to how the jury should deal with it. In those circumstances the Court of Appeal should not have sought to apply the proviso by adopting its own view of the evidence, irrespective of the manner in which the inadmissible evidence may have influenced the jury: see Orreal at [23], [45]. 6. So far as the unreasonable verdict ground is concerned, I agree with the conclusion reached by Dhanji J and with his reasons. Like Dhanji J, I have not placed any reliance on whatever principle may be derived from the decision of the High Court in Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65. 7. ROTHMAN J: I agree with Dhanji J and with the additional comments of Bathurst CJ. 8. DHANJI J: The applicant, John Wallace Edwards, seeks leave to appeal against his conviction for the murder of his wife, Sharon Margaret Edwards (the deceased) on or about 14 March 2015, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The applicant pleaded not guilty before R A Hulme J and after the hearing of some pre-trial issues commencing on 28 October 2019, a jury was empanelled on 30 October 2019. On 22 November 2019 the applicant was found guilty. On 18 December 2019 he was sentenced to 24 years' imprisonment commencing on 20 June 2017 and expiring on 19 June 2041 with a non-parole period of 18 years expiring on 19 June 2035. The applicant does not seek to appeal against sentence. 9. The Crown case at trial was circumstantial. The Crown case principally relied on evidence as to the relationship between the applicant and the deceased, evidence concerning his movements on the night the deceased disappeared, and evidence of the applicant's post-offence conduct which included various lies and otherwise inconsistent accounts of relevant events. The availability of expert evidence as to the manner and cause of death was limited as a result of the fact the deceased's body has never been found. 10. The applicant did not give evidence but witnesses were cross-examined and his counsel's closing address was delivered on the basis that the applicant had nothing to do with his wife's disappearance (or more accurately as to the closing address, the Crown had not proved to the requisite standard that he had). The element of death was not seriously in issue. Counsel submitted that the applicant's behaviour in the aftermath of his wife's disappearance was consistent with distress and confusion which was understandable in the circumstances. In the course of his Honour's summing up, after the directions in relation to lies and consciousness of guilt had been given, counsel for the applicant raised the possibility of leaving an alternative verdict of manslaughter to the jury. It was eventually determined that this verdict would be left. The applicant's first three grounds of appeal arise from the directions with respect to the alternative verdict of manslaughter. 11. The applicant's grounds of appeal were as follows: "[Ground 1:] The trial judge erred when directing the jury as to how they could use evidence of post-offence conduct including lies, said to demonstrate consciousness of guilt, by not directing the jury: a) that the conduct could be used in respect of the manslaughter count as well as the murder count; and b) that they could only use the evidence as an indication of consciousness of guilt of murder if they were satisfied that the lies were not told out of a consciousness of guilt of manslaughter. [Ground 2:] The trial judge erred by not holding that the post-offence conduct including lies, said to demonstrate consciousness of guilt, was 'intractably neutral' as between murder and manslaughter and by not directing the jury accordingly. [Ground 3:] The trial miscarried because the jury were not directed in a fair and balanced way as to the reasonable hypothesises [sic] consistent with manslaughter that arose on the evidence and which were required to be excluded before the [applicant] could be convicted of murder. [Ground 4:] The verdict of murder was unreasonable and cannot be supported having regard to the evidence." 1. Grounds 1, 2 and 3 require leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) as no objection was taken by the applicant at trial. Ground 4 requires leave as it raises a question of mixed law and fact: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Factual background The Crown case 1. The Crown case can be summarised as follows. 2. The applicant and the deceased met while studying at teachers' college and married in 1982. They had three sons together and both worked as teachers. Early in their marriage, the deceased had an affair with a man named William "Billy" Mills which lasted "a few years". The applicant had expressed a strong dislike for Mr Mills and told a friend that Mr Mills was one of the main reasons the couple had moved from Sydney to the North Coast. The applicant's friend said, "he absolutely hated Billy Mills". 3. In March 2015 the applicant and the deceased were living in separate houses in the Grafton area. The applicant was living at premises in Lawrence (which the couple had purchased in 1987) and the deceased was living in a house in Riverdale Court, Grafton (which had been purchased in 2014). The house at Riverdale Court had been purchased with funds the applicant inherited from his late mother. The applicant told police he paid "every single red cent" for the Riverdale Court house, and their intention was for him to renovate the Lawrence house so that they could rent it and the two of them would live in the Riverdale Court house together. He said that all their belongings had been moved to Riverdale Court and he had been sleeping on an airbed in the Lawrence house. The applicant said that when he renewed his driver's licence the deceased said to make sure his address was recorded as Riverdale Court. He also said that the deceased had recently thrown "a spanner in the works" by saying that she did not like the Riverdale Court house and wanted to move back to Lawrence with him. The applicant told police their relationship had been "good". 4. The deceased confided in a number of friends with respect to the state of her marriage. These confidences were in stark contrast with the applicant's portrayal of the relationship in his statements to the police. The deceased had told her close friend, Ms Kennedy, that she wanted to live alone at the Riverdale Court premises and her marriage to the applicant was over. The deceased regularly sent Facebook messages to Ms Kennedy regarding her relationship with Mr Mills and her marriage to the applicant. These messages became Exhibit A. Some significant entries are set out in full later in these reasons. For present purposes it is sufficient to observe they indicated that the deceased had on several occasions tried to discuss ending the marriage with the applicant but he refused to accept it or talk about it with her. In January 2015 the deceased wrote, "… tried to discuss it last night … told him we r finished n just friends but he said don't want to talk about breaking up". On 1 March 2015 the deceased messaged Ms Kennedy saying "Oh no john is on phone n asked where I stayed sat night. So I said Billy's." Ms Kennedy said that this referred to a weekend the deceased had spent in Sydney celebrating her 55th birthday with Mr Mills. The deceased said she was not going to divorce the applicant but wanted to separate from him and "do her own thing". She told Ms Kennedy she had sought advice from an accountant because she wanted to be financially independent. 5. The deceased also regularly visited Ms Kennedy in Sydney and also saw Mr Mills. The deceased told Ms Kennedy in late 2013 or early 2014 that the relationship with Mr Mills "was going really well" and "she could see a future with [Billy]". 6. The deceased told another friend, Ms Roach, that her marriage was over and she was considering retiring to Forster with Mr Mills. The deceased's friends had observed the applicant to be suspicious and controlling towards the deceased, including on one occasion wanting to speak to one of her friends to confirm her location. The days preceding the disappearance of the deceased 1. The deceased attended a course in Sydney from Wednesday, 11 March to Friday, 13 March 2015. Mr Mills was at that time in Coffs Harbour for a touch football tournament. On Friday, 13 March the deceased flew from Sydney to Grafton and then drove to meet Mr Mills at Coffs Harbour. They had dinner with Ms Roach and stayed at her house in Coffs Harbour. The deceased told Ms Roach over dinner that she had told the applicant not to visit the house at Riverdale Court that weekend as "Billy was coming up". The deceased said the applicant didn't respond and it was "as if she hadn't said anything". 2. On Saturday, 14 March 2015 the deceased drove Mr Mills to his accommodation in Grafton and then visited her father in Lawrence. She played tennis in the afternoon and exchanged text messages with Mr Mills throughout the day. The deceased left the tennis courts at around 5:40pm, returned to Riverdale Court and then met Mr Mills and his friend Mr Weatherall at the Good Intent Hotel at South Grafton. 3. The applicant was seen at the Riverdale Court premises on Saturday, 14 March, painting a planter box and retaining wall in the front yard. At about 6:45pm he was again seen at the premises. The night of the deceased's disappearance 1. At about 7:15pm on Saturday, 14 March the applicant drove to central Grafton and withdrew money from an ATM. He then made several calls to the deceased. The applicant told police that the deceased said she was at a pub in Grafton with "some people [he] didn't like" including Mr Mills and that she wanted them to stay overnight at Riverdale Court. The applicant said he told the deceased to "tell them to get a room … they're not staying here … I'm going to stay here tonight". The applicant told police that he drove around various hotels in Grafton looking for the deceased and he said, "I suppose all husbands do this". He said that he saw the deceased's car parked outside the Good Intent Hotel but he did not go inside. He said he called the deceased again to say, "he's not staying here … I don't want a bunch of drunks there specially [sic] … people I don't like." The applicant told police he then drove to Riverdale Court and parked his car in the garage (rather than outside the house), where the deceased would normally park her car. 2. Mr Mills said that after leaving the Good Intent Hotel, he and the deceased ordered takeaway food and went to Mr Weatherall's house. Mr Weatherall's wife estimated that the deceased and Mr Mills left their house at around 11pm. 3. Mr Mills told police that when he and the deceased arrived at Riverdale Court all the lights were off in the house. The deceased opened the garage door and saw the applicant's ute parked in the garage. She said, "shit, John's here." Mr Mills said he told the deceased not to panic and asked if she could drive him back to Mr Weatherall's house, which she agreed to do. Mr Mills stayed at Mr Weatherall's house that night and did not see the deceased again. 4. Police obtained data from the mobile phones of the deceased and the applicant for the period of 14-15 March 2015. Mr Chang, a Senior Technical Specialist from Optus, gave evidence about this data. He explained that a phone will correspond ("ping") with a base station when it receives a call, when it is turned on, when it moves from one area to another, or for "periodic reporting" which occurs approximately every hour if the phone is turned on but not being used. 5. The mobile phone data indicated that at 12:35am on Sunday, 15 March the deceased's phone pinged off a station covering the Riverdale Court area. The applicant's phone pinged in an area near the Riverdale Court house at 3:17am. The deceased's phone had been pinging off a similar coverage area near Riverdale Court between 1:35am and 3:04am. 6. At 4:04am the deceased's phone pinged off the Junction Base Station, consistent with the deceased, or at least her phone, having moved north of Grafton. At 4:09am the deceased's phone pinged off a tower near Lawrence and at 4:22am the applicant's phone pinged off a cell attached to the same tower. The deceased's phone pinged off the same tower at 5:09am (consistent with a periodic update) and the applicant's phone pinged off the same tower at 5:23am. The deceased's phone did not produce any more data after 5:09am on Sunday, 15 March 2015 and has never been found. Post-offence conduct 1. On Sunday, 15 March 2015 at 8:10am, the applicant began sending text messages and making calls to the deceased's phone. Three of those messages were as follows: "[8:12am] leaving now to mow. Make sure they have gone. [9:18am] got here at 9 as I said. Pleased to see them not here but where are you I found the front door wide open what's going on. [8:06pm] still got the shits with me. I've been ringing all day. I'll be there in the morning to mow. Ring me im. getting tired of calling." 1. The applicant arrived at Riverdale Court at 9am on Sunday, 15 March but did not mow the lawn. The neighbours found it unusual for the applicant to be there so early on a Sunday morning. 2. On Monday, 16 March 2015 the applicant attended the school where the deceased worked and said he believed the deceased was missing. Ms Simpson, who worked at the school, asked how the applicant knew she was missing and whether he had phoned any hospitals, to which he said he had not. She suggested he call the local hospitals and provided the applicant with the relevant phone numbers. The applicant did not make any enquiries at the local hospitals, nor did he contact any friends of the deceased or notify her father that he believed she was missing. The applicant had contacted his sons on Sunday, 15 March to ask if they had heard from the deceased but did not contact them again before reporting the deceased as missing on Tuesday, 17 March 2015. 3. The Crown relied on "13 different versions" given by the applicant about the events of 14-15 March. Those versions were as follows. 4. On Monday, 16 March when the applicant visited the school where the deceased worked he told the school principal that he had not seen the deceased all weekend but had spoken to her on the phone and said "Don't bring Billy back to the place." He said he was worried the applicant would bring him back to Riverdale Court so he parked his ute in the garage (where the deceased would normally park) so that when she arrived she would see his ute and Billy would be discouraged from staying. He said that later on he heard the garage door open and close. When he went to the garage his car was still there but "Sharon was nowhere to be seen". 5. After visiting the school on Monday 16 March, the applicant went to the Grafton Police Station and spoke to Senior Constable Bird. He told Senior Constable Bird that the deceased "turned up with this bloke so I got a bit upset and told them all to fuck off". He said that the deceased left and that was the last time he saw her. 6. On Tuesday, 17 March the applicant again attended the Grafton Police Station. He told Senior Constable O'Mahony that he had been watching a movie at the Riverdale Court house when he heard the garage roller door open and close. He said that the deceased came home later, while the movie was still on and that she wanted to have friends stay at the house. He told her to "get a room" and she "went to bed cranky". The applicant said that after the deceased went to bed he moved his ute out of the garage and moved the deceased's car into the garage before returning to the premises at Lawrence. Senior Constable O'Mahony noticed the applicant scratching at a cut on his right little finger and asked what he had done. The applicant said it was "an old gardening accident" that happened "weeks ago". The applicant said, "it bled like anything when I did it, it bled right through the house", in reference to the house at Riverdale Court. The applicant then told Senior Constable O'Mahony that the deceased had stubbed her toe and "opened it right up". He said, "you can look right through the house …". 7. After attending the police station the applicant visited his neighbours in Lawrence and said that he did not see the deceased at all on Saturday night. He said that he only heard the garage door go up and down, a car door shutting and then a car leaving. He told his neighbour that he stayed the night at Riverdale Court with his dog and woke up at around 5am, at which time the deceased was still not home so he drove back to Lawrence. He told a similar version to another neighbour later that day (around 4pm). 8. At around 2pm on Tuesday, 17 March 2015 the applicant returned to Grafton Police Station with his son, Zac Edwards. He voluntarily participated in a recorded interview (not as a suspect) which became Exhibit E. He said that after seeing the deceased's car at the Good Intent Hotel he drove back to Riverdale Court, parked in the garage and watched Dances with Wolves on television. He then heard the roller door go up and down, after which he walked downstairs but the deceased had "taken off". He said that the deceased came back several hours later but he was not sure of the time and whether Dances with Wolves was still playing. When she came home she was not happy with him but there was no "yelling or screaming". The applicant said he told the deceased, "I know you meet up with him … it's an unreasonable expectation for him to stay in this house." He then moved the deceased's car into the garage and returned to Lawrence. Before leaving, he placed her car key in the side pocket of her handbag so it would be difficult to find because he didn't want her to go out again that night. He was not sure what time he left Riverdale Court. 9. The applicant's son, Joshua Edwards, recalled the applicant told him, while staying at his house, that he parked in the garage and waited at Riverdale Court for the deceased to come home. He then heard the roller door go "slightly" up and then down and he "ran" to have a look but the deceased's car was gone. The applicant recalled waiting a few hours until the deceased returned, at which time he was "calm" and told her to "get a hotel room". He said, "it's an unreal expectation for me to have him [Billy] stay here [at the Riverdale Court house]". The applicant said that the deceased went upstairs and "he waited a bit and then left". The applicant's youngest son, Zac Edwards, recalled that the applicant told him that he went to the house at Riverdale Court and "confronted [the deceased] about seeing Billy Mills". The applicant said they had a calm conversation and he told her it was an unreasonable expectation for him to "be okay" with the deceased seeing Mr Mills. 10. On 31 March 2015 the applicant told Joshua Edwards in a recorded telephone conversation that he "didn't actually have a fight" with the deceased but "she wasn't happy" that he had "wrecked her bloody night". The applicant said he told the deceased, "it's an unreal expectation [for Mr Mills to stay at the house]" but that there was "no yelling or screaming". 11. On Tuesday, 17 March the applicant told his second son, Eli Edwards, that he waited at the Riverdale Court premises after speaking to the deceased on the phone while she was at the pub. A few hours later he heard the garage door go up and down again, then a few hours later the deceased returned home. They "got into a verbal argument" after which the applicant left and the deceased told him, "don't come back before 9am." The applicant said that he came back the next morning and the door was open and he thought it was strange that the deceased's car was still in the garage. Eli Edwards recalled that on Wednesday, 18 March the applicant was "jittery and very paranoid and anxious" because police "had seized the house". The applicant said, "police will find duct tape at home", which Eli Edwards found strange. 12. On 20 March 2015 the applicant told Paul Farrell, a schoolteacher and friend, that he didn't know where the deceased was and the last time he had seen her they had a "barney, a big one", which Mr Farrell understood to mean "some sort of argument or fight or something like that". On another occasion on 5 April 2015 the applicant told Mr Farrell that he was sure the deceased was dead and he believed she had hired a hitman to kill him and it had "backfired" and she had been killed instead. In September 2015 the applicant told Mr Farrell that he believed the deceased had a "secret life" and the police "should be looking more into her life than … they were." 13. A media appeal was held on 1 April 2015 at which the applicant appeared with police and his sons. The applicant told the media he was the last person to see the deceased alive and that he last saw her on Saturday, 14 March at which time she was "okay". He said that she had caught up with some friends on Saturday night but he returned to the house at Lawrence "so she'd get a good night's sleep". When police searched the Riverdale Court premises on 18 March, the deceased's bed was still made and did not appear to have been slept in. 14. On 2 April 2015 Joshua and Zac Edwards visited the applicant at Riverdale Court. Joshua Edwards gave the following evidence: "… he was trying to still say that there was, nothing really happened and we said mate, 'That wouldn't happen if you, you know, you find out your wife is having an affair or she's off with another bloke, you wouldn't act like that'. He said, 'Oh there was an altercation', yeah he said, 'He'd, like he'd snatched the iPad, he'd wrestled with her'. He said, 'He had her hand pinned behind her back or her side and he slammed her on the floor and she hit her head and then she got up and went to bed'. … And then he was sort of talking, mumbling a little bit and he said, 'I should have just walked away, I should have just [walked] away'." 1. Zac Edwards' recollection was not in the same terms but was to similar effect including that the applicant said he "opened a cut on his hand" in the course of the altercation. After this conversation with his sons the applicant participated in another voluntary interview with police (Exhibit O) in which he said: "I haven't quite told you everything that happened on, on Saturday night … she came back … I know where I was up to in Dances with Wolves … that's when she rocked up … I don't know exactly what time it was. [The deceased] walked upstairs. She was typing a text message. There weren't any, any angry words. I'd already pulled out the, the plug, on the Wi-fi, so she couldn't get on Facebook. But she went for her iPad, and I've grabbed, grabbed it off her, and it's twisted, she's hit the ground. She opened up that, that cut that I did a couple of weeks ago, um few drops of blood … I put her car in … I asked her about the, the 40 grand. Um, you know, what's the 40 grand for? She said, 'To get rid of you' …" 1. In early 2016 the applicant's sons met with Detectives Scott and Sippel, who explained the contents of the mobile phone data that had been obtained. The applicant's sons decided to visit him at Lawrence and discuss it with him. The applicant refused to speak to them there, stating that the house was bugged, so they met at the Lawrence cricket oval. Joshua said that the applicant "brought up the hitman again" and then said that he "found a rubber dildo in front of his house" on the morning of 15 March 2015. The applicant went on to say that he "found his phone next to his ute [outside the house at Lawrence] when he went out the next morning." About one year after the deceased disappeared the applicant told Joshua, "I should have went home. Your mother would be alive if I went home". 2. While the Crown referred to the above as 13 different versions some of the accounts are not necessarily inconsistent, or at least materially inconsistent, with other accounts. Nonetheless, on any view, the applicant gave a number of significantly inconsistent accounts of relevant events. Other circumstantial evidence 1. On 17 March 2015 crime scene warrants were executed at the Riverdale Court and Lawrence premises. The deceased's handbag and mobile phone were not found. Her car was parked inside the garage at the Riverdale Court premises. It was an agreed fact that there were only ever two keys to the deceased's vehicle. One was found by police in a dresser at the Riverdale Court premises. The other key was not found when the premises were searched. 2. The applicant told police on 2 April 2015 that he found the deceased's car key "a couple of days" after he regained access to the Lawrence house on 19 March 2015. He said that he searched "every little nook and cranny" in the house because he was "paranoid the house was bugged". He then found the keys that he "used … to drive the car into the garage". He decided to make a record of this as he thought he was being "stitched up". He then provided the car key to his solicitor. 3. The applicant's solicitor gave evidence that he had been given the key one week prior to 15 April 2015 and the applicant told him, "I've told the police about these keys but they're not interested". He stored the key in his office and subsequently provided it to police. There was no record of the applicant offering the key to police before his solicitor provided it. 4. The deceased's "nightie" was found in the footwell of the applicant's ute. The applicant told police that he used it for cleaning his vehicle. 5. The applicant was observed to have an injury to his right hand shortly after the relevant events (the applicant was also observed to be right-handed). The applicant told his general practitioner, Dr Rajikumar, and two radiographers that he sustained the injury while gardening. Dr Rajikumar observed the injury on 26 March 2015 and noted a significant amount of tenderness and swelling on the applicant's right hand. The applicant also had a 3cm laceration on the back of his right hand, at the base of the knuckle on his fourth finger. On 1 April 2015 the applicant returned to Dr Rajikumar to discuss the X-ray results, which indicated a fracture to the applicant's fifth metacarpal (the bone between the knuckle and first joint of the little finger). The applicant gave some detail as to how he sustained the injury, stating that he was trying to lift a heavy stone in the garden which ended up crushing his right hand on the ground, whereupon a Stanley knife that was lying on the ground caused the laceration. The applicant said this happened four weeks ago and he put in a suture which he removed himself. Dr Rajikumar believed the laceration looked about two or three weeks old and was consistent with an injury occurring on 14 March 2015. He believed the applicant's account was inconsistent with his injury but "possible". 6. Two orthopaedic surgeons gave evidence about the fracture and laceration on the applicant's hand. Dr Richard Lawson stated that the applicant's injury was a commonly occurring type of fracture which was most often sustained (clinically and in the literature) by "striking with a clenched fist against a hard object" (known as a "boxer's fracture"). In his opinion, the applicant's injury was "entirely consistent with a boxer's fracture" and was unlikely to be caused by a "crush injury" as described by the applicant. He believed based on the lack of healing shown on the X-ray that the injury was more likely to have occurred on 14 March 2015 than in early March as described by the applicant. 7. Dr Lawson said it was also common for a laceration to occur in conjunction with a boxer's fracture, known as a "fight bite", as such a laceration can be caused when a person's tooth comes into contact with another's knuckle when being punched in the face. He went on to say that the skin over the knuckle is fairly thin and a laceration could also be sustained by punching a different object. In Dr Lawson's opinion, a crush injury sustained by dropping a heavy object would more likely have "quite marked bruising and abrasions" rather than a single laceration. In cross-examination Dr Lawson agreed that a crush injury could not be eliminated but studies indicated that only around 3% of fractures to the little finger were caused by crush injuries. Dr Amir Kalanie saw the applicant at Grafton Base Hospital in April 2015 and believed the applicant's injury was consistent with a "boxer's fracture" and likely happened less than two weeks before the X-ray on 26 March 2015. The defence position 1. No evidence was called by the defence. As noted above, the primary position taken by the defence was that the applicant had nothing to do with his wife's disappearance. In cross-examining the Crown witnesses, counsel for the applicant suggested that his sons were mistaken in their recollections of the applicant's accounts. The defence at one point sought to cast suspicion on Mr Mills in relation to the deceased's disappearance though ultimately this was explicitly disavowed. Significantly for the purposes of this appeal, however, in his address, discussed further below, defence counsel made clear the obligation of the Crown to prove each element beyond reasonable doubt. The addresses Crown address 1. The Crown relied on the history of animosity between the applicant and Mr Mills as evidence of motive. The Crown also relied on the applicant's statements about the marriage, contradicted by statements made by the deceased, as evidence relevant to motive and the couple's relationship. The Crown noted that the applicant told several people that he did not want Mr Mills staying at the Riverdale Court house because he had paid for "every red cent" of the property. He had been observed coming and going from the house on Saturday and admitted to driving around Grafton looking for the deceased. The Crown relied on the applicant's "13 versions" as lies and on his other post-offence conduct as revealing a consciousness of guilt. The Crown referred to the mobile phone evidence and submitted that it was consistent with the applicant and the deceased's body moving north of Grafton, likely in the course of the applicant disposing of the deceased's body. Defence address 1. Counsel for the applicant commenced his closing address in the following way: "Before I commence or start on the accused's account in relation to these events let me please almost as an aside make this remark. You heard the Crown Prosecutor in a very thorough address outline the Crown's case to you but you might have thought that in that very thorough address she almost skipped over the element of proof that involves proof of intent to cause death or really serious bodily injury. The Crown has to prove that element ladies and gentlemen just like all the rest, it's not our case of course that the accused was involved in the disappearance of Sharon Edwards, the [C]rown however bears the onus of proof of all elements of this offence and I remind you ladies and gentlemen that the Crown must [prove] that element like all beyond reasonable doubt and in considering your verdict in respect of this matter you won't of course put aside your experience of life and remember that human beings act for all sorts of reasons, that's why juries of course are used in our system. You might consider whether the Crown has fulfilled its onus in respect of that element leaving aside altogether the accused's case." 1. Counsel for the applicant went on to submit that the applicant's behaviour after his wife's disappearance was consistent with innocence and reflected his shock and grief in the situation. It was submitted that if the applicant had killed the deceased in the Riverdale Court premises on the night of 14 March 2015 the neighbours would have seen or heard something. In relation to the different versions given by the accused, it was submitted that they were not all inconsistent and discrepancies were potentially attributable to unreliability on the part of the witnesses. It was submitted that the applicant's account of his hand injury was "unlikely but possible" and there was "room for doubt" in the expert opinions regarding the likely mechanism of injury. Summing up 1. His Honour set out the issues in dispute and noted that the defence case was "neutral" on the subject of whether the deceased was dead but it remained for the Crown to prove that beyond reasonable doubt. His Honour observed that the most significant matter in dispute was whether the applicant killed the deceased. 2. His Honour directed the jury as to inferences, expert evidence, hearsay and the onus and standard of proof. His Honour then directed the jury as to the elements of murder, the significance of the circumstantial case, lies and post-offence conduct. 3. During the lunch break, after the above directions were given, counsel for the applicant asked whether his Honour intended to leave an alternative verdict of manslaughter to the jury, to which his Honour replied in the negative. Counsel for the applicant then drew the Court's attention to the applicant's statements in which he described "wrestling" over the iPad and "slamming" the deceased on the floor. After the lunch break his Honour determined an alternative verdict of manslaughter would be left to the jury, on the basis that defence counsel had suggested that the Crown may not have proved the requisite intention and on the basis of the applicant's version involving a struggle over the iPad. 4. When his Honour resumed his summing up he noted that the Crown case was that the applicant was guilty of murder while the defence case was that the applicant did not kill her at all. His Honour then referred to the applicant's account in which he described a struggle over the iPad and then directed the jury as to the elements of manslaughter on the basis of unlawful and dangerous act. His Honour stated, in relation to the applicant's version involving a struggle, that: "If you thought this version of events might be true, it may be relevant to your assessment of whether the Crown has proved the essential element relating to intention, that the accused intended to kill or cause really serious bodily harm. If you were not satisfied that the Crown has proved that element, but are satisfied that the Crown has proved that a deliberate act of the accused caused, or substantially caused, the death of Ms Edwards, and that the deliberate act was one that was both unlawful and dangerous, then it would be open to you to find the accused not guilty of murder but guilty of manslaughter." 1. His Honour then summarised the parties' respective cases before concluding with a summary of the available verdicts. The jury then retired to consider its verdict. 2. His Honour raised with the parties whether the alternative verdict of manslaughter should be clarified to note that such a verdict did not depend on the jury's acceptance of the applicant's evidence in relation to the struggle over the iPad. Before the jury left for the day, his Honour then directed the jury that: "Accepting that that might be a reasonably true version of events, does not necessarily mean that you would have a doubt about whether the Crown had proved the intention element, but it could be relevant to your consideration of it. But even if you do not accept that version as one that could reasonably be true, it remains that you have to be satisfied by the Crown that it has proved that element of intention. If you have a doubt about that … then you would, if you had a doubt about whether the Crown had proved that, you would then consider [whether the Crown has proved unlawful and dangerous act manslaughter]." 1. On the third day of deliberations the jury sent a note seeking clarification on the difference between murder and manslaughter. His Honour provided a draft written direction to counsel. A revised draft was provided the next morning following email correspondence from counsel. Defence counsel did not object to the revised document. The jury was provided with the written direction and the elements of each offence were again thoroughly explained to the jury. In relation to intention, his Honour said: "A person's intention may be inferred or deduced from the conduct of an accused before, at the time of, or after, the accused did the specific act which caused death. In this case, you do not have any specific evidence as to what that conduct was. The most the Crown is able to say is that it must have been something that caused, or was a substantial cause of, Ms Edwards' death; something that was able to be concealed by either cleaning up afterwards or something that did not leave evidence discernible by the police when they carried out their examination of the home at Riverdale court. In some cases what a person says about his or her intention may be looked at for the purpose of finding out what that intention was at the relevant time. Of course, in this case the accused has not said anything about his intention because his case is that he did not do anything to cause Ms Edwards' death." 1. The jury returned later that afternoon and delivered its verdict. The appeal Preliminary observations 1. Prior to addressing the specific grounds some general observations may be made about the approach to the appeal both with respect to the case run at trial and the absence of any request for the directions now said to have been required. 2. The grounds, based on complaints as to the directions and as to the reasonableness of the verdict, are all premised on the availability of a verdict of manslaughter. Inherent in each ground is an assumption that the applicant's responsibility for an unlawful and dangerous act which resulted in death was proved beyond reasonable doubt by the Crown. This was not the applicant's position at trial. That is, having gone to trial on (essentially) murder or nothing the applicant appeals to this Court with complaints of error (or at least third limb miscarriage) related to the possibility of a verdict of manslaughter. 3. As a general proposition (that is, without intending to say anything as to the merits of the grounds), it is entirely possible for this Court to find error or third limb miscarriage, not be satisfied the proviso to s 6(1) of the Criminal Appeal Act should be applied, but also, not be satisfied the verdict is unreasonable. That is because, in considering whether the verdict is unreasonable this Court must consider whether from the record, a doubt exists as to the guilt of the applicant. If so, the appeal will nonetheless be dismissed if the jury's advantage in having heard the evidence is capable of resolving that doubt: M v The Queen (1994) 181 CLR 487; [1994] HCA 63. Particular regard is given in this context, to the role of the jury as the "constitutional tribunal": Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38]. In considering the proviso (a precondition of which is some form of miscarriage), if this Court is not satisfied of the guilt of the applicant to the requisite standard from the record or is otherwise of the view that there has been a substantial miscarriage of justice the appeal must be allowed. With respect to this Court's satisfaction of guilt beyond reasonable doubt, while the jury's verdict forms part of the record, unlike when applying the test in M v The Queen, the Court does not consider whether any doubt is resolved by the advantage held by the jury. Rather, this Court's capacity to be satisfied beyond reasonable doubt is impacted by the "natural limitations" inherent in proceeding wholly or substantially on the record: see Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 at [22], [41]. While the jury's verdict forms part of the record, where second limb error or third limb miscarriage is established, the weight to be given to the verdict will be affected by the nature of that error or miscarriage. Of course, if, independently of the strength of the case, there is a "substantial miscarriage of justice", the proviso will not apply and the appeal must be upheld even if the Court is otherwise satisfied beyond reasonable doubt of the guilt of the accused. 4. Should this Court find the verdict is not unreasonable but that second limb error or third limb miscarriage has been established the applicant will face (assuming s 8 of the Criminal Appeal Act is not applied, and there was no submission it should not) a new trial. At that new trial he can again contest, and potentially avoid, responsibility for the killing. Yet a jury has already found that he is responsible for the killing, there is no complaint as to this aspect of the verdict, and the appeal has proceeded on the premise that he was guilty of at least manslaughter. This is not, however, a basis for dismissing the appeal: see, for example, Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64; Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15. Rule 4.15, Criminal Appeal Rules 1. No request for directions was made with respect to any of the complaints made under grounds 1, 2 and 3. In those circumstances, r 4.15 of the Criminal Appeal Rules applies. Rule 4.15 directs attention to the manner in which the case was conducted at trial and the issues in dispute. Even in the absence of r 4.15 the approach at first instance would be relevant to whether the applicant can establish a miscarriage of justice. As Gaudron J said in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26], quoting from the judgment of Fullagar J in Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 at 514: "[26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on [the] basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open." (footnotes omitted) 1. Her Honour in support of this proposition referred to Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46 at [55], per Gaudron and Callinan JJ; and Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23 at [6], per Gaudron and Gummow JJ. 2. Gaudron J's observations echo the earlier observations of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685, where his Honour referred to this Court having "a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates." His Honour later said, in Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 at [9]: "A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. … It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function." 1. That proposition has an active part to play in the present matter. Further, as has been stated on numerous occasions, an appeal under the Criminal Appeal Act "does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial": ARS v R [2011] NSWCCA 266 at [148] referring to R v ITA (2003) 139 A Crim R 340; [2003] NSWCCA 174 at [94]; R v Fuge (2001) 123 A Crim R 310 at 319; [2001] NSWCCA 208; Darwiche v R (2011) 209 A Crim R 424; [2011] NSWCCA 62 at [170]. 2. The applicant's counsel below, midway through the summing up, enquired of the trial judge as to whether manslaughter would be left. He actively supported the proposition that it should, referring the trial judge to evidence which the trial judge ultimately accepted provided a viable case of manslaughter which ought to be left to the jury. 3. The applicant now complains that the trial judge ought to have done certain things which would have improved his prospects of a verdict of manslaughter. This raises a difficult question. The applicant's case at trial was squarely directed towards a finding that he was not guilty of any killing with the alternative based on a failure to prove the requisite mental state explicitly put as an "aside" or "digression" in the closing address. 4. The applicant submitted that the request for a direction on manslaughter appeared to be in the nature of an "afterthought", the implication being that proper consideration was not given to the directions on lies and post-offence conduct in the context of the availability of an alternative verdict. The timing of the request for the manslaughter direction is relevant. The trial judge gave his direction in relation to lies and post-offence conduct immediately prior to the lunch adjournment on 19 November 2019. After the jury left the courtroom, the trial judge asked counsel whether there was anything either of them wished to raise, whereupon the applicant's trial counsel enquired whether his Honour proposed to leave the alternative verdict to the jury. His Honour responded in the negative. The applicant's counsel immediately pointed to statements in which the applicant described an altercation possibly amounting to an unlawful and dangerous act on his part. He had, of course, already addressed the jury to the effect that the mental element had not been proved. It would appear from this that the defence application for manslaughter to be left was not a spontaneous thought on the part of the applicant's counsel. Indeed, having regard to the manner in which the trial had been run it can be expected that the issue had been the subject of discussion between counsel and the applicant and instructions had been obtained from the applicant before the issue was raised with the trial judge. If, as appears to be the case, the submission that manslaughter should be left was not a spontaneous thought raised without instructions, given the point at which the issue was raised, it follows counsel held an intention to raise the possibility of the alternative verdict prior to his Honour's directions on lies and post-offence conduct. Despite this, no application was made to redirect the jury in relation to lies or post-offence conduct more generally. 5. It can be accepted, as submitted by the applicant, that the timing of the request was unfortunate. This is particularly so given the possibility of manslaughter appears to have been in counsel's mind from, at least, the beginning of his closing address. Ultimately, while the manner in which the applicant ran his trial is highly relevant, what was in counsel's mind is, however, not to the point. If not seeking the direction is objectively justifiable as a rational forensic decision there will, at least in the circumstances of this case, be no miscarriage of justice: see Nudd at [9], cf [15]. The relationship between the grounds of appeal 1. There is a close relationship between all the grounds of appeal. The applicant, at the hearing of the appeal, accepted that ground 1 is only necessary if ground 2 is not established. He also submitted that "ground 3 is the consequence of ground 1 being made out". He further submitted that if ground 2 is made out, ground 4, unreasonable verdict, is also made out. 2. Given the above it is convenient to begin with a consideration of ground 2. Ground 2: was the post-offence conduct "intractably neutral"? 1. Ground 2 of the appeal is in the following terms: "The trial judge erred by not holding that the post-offence conduct including lies, said to demonstrate consciousness of guilt, was 'intractably neutral' as between murder and manslaughter and by not directing the jury accordingly." 1. There was some argument on the appeal directed to the question of whether this was properly a ground asserting error within the second limb of s 6(1) of the Criminal Appeal Act, or if the real complaint was of miscarriage of justice within the third limb of that provision. The framing of the ground, in terms of "erred by not holding", is arguably inapposite in circumstances where his Honour was not asked to rule on the issue. While I am inclined to the view that a "wrong decision of any question of law" is not inevitably predicated on a request for a ruling (cf Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72] per McHugh J, noting his Honour's remarks there were obiter and that Kirby and Gaudron JJ expressly disagreed with this part of his Honour's reasons; see also Greenhalgh v R [2017] NSWCCA 94 at [7]-[8] per Basten JA). Ultimately, in the circumstances of this case it is unnecessary to resolve the issue. The question posed by the ground is whether the evidence of post-offence conduct was "intractably neutral". In my view it was not. 2. The argument with respect to this ground takes as its starting point the jury's finding that the applicant was responsible for a voluntary act which was a substantial cause of his wife's death. The first step in the argument is that, having killed his wife, an awareness of having done something seriously wrong, certainly criminal (amounting in the mind of a criminal lawyer to an unlawful and dangerous act), and with serious consequences, would provide in the applicant, a strong motive to avoid responsibility for that act. The second step is, this being so, the post-offence conduct was not probative as to proof of murder as opposed to manslaughter (or, in the words of the ground was "intractably neutral" as to this issue). The first step can be accepted. The second step, however, cannot. That the applicant's post-offence conduct was potentially consistent with a desire to avoid responsibility for an unlawful and dangerous act that resulted in death does not mean that the evidence was "intractably neutral" as between murder and manslaughter. 3. The applicant accepted the evidence excluded accident as a reasonable possibility. The alternative case for manslaughter advanced by the applicant, nonetheless involves the applicant engaging in an act that, while criminal, had a consequence far beyond anything in his contemplation. In short, the scenario posited, is that the applicant having committed an act with no intention to occasion really serious harm, found himself in a room with his wife of 33 years, dead, or possibly, dying. Rather than seeking help or alerting anyone to what had occurred, the applicant took steps to dispose of the body and subsequently engaged in various acts, including but not limited to the multiple lies to avoid responsibility for what had occurred. Those acts included the various texts he sent to the deceased's phone on the Sunday as a ruse to suggest he was not aware what had happened to her. None of this, in my view, sits well with any grief or anguish that might have been expected had he, with no intention to cause serious injury, nonetheless killed the deceased. 4. The applicant, on the present hypothesis, also told lies to his children, over a significant period of time, with respect to the death of their mother. That is the applicant, despite bearing responsibility for the death, but without having intended really serious injury, and despite the weight of evidence establishing him as the last person to see her alive, chose to tell lies to his children rather than explain to them what had occurred. That is not to draw any adverse inference from a failure to provide an explanation for his wife's disappearance and thereby deny the applicant the right to silence. Rather, it is to acknowledge that the positive act of telling lies to his children is more consistent with guilt of the more serious offence of murder, than with the applicant having committed an unlawful and dangerous act that had a consequence far beyond anything he might have intended. 5. Of course, it may have been more palatable to the applicant not to admit to his children that he had killed their mother, even if death was an unintended result. To tell them he was responsible for her death carried the risk of him losing any relationship with them. On the other hand, maintaining the lies that he told his sons denied them any certainty as to what had happened to their mother and prevented her body being found. While both are possible, I consider the lies told to his sons to be more consistent with an assault involving an intention to kill or inflict really serious injury than with having caused death without such an intention. 6. As noted immediately above, the lies told by the applicant had the consequence that the deceased's body was never found. Of course, disclosing the location of the body would have required the applicant to admit criminal responsibility for the death, even if it was an unintended result. But that does not render it neutral. There was a real advantage to disclosing the whereabouts of the body – it would have allowed for a burial and provided some comfort to the applicant's children, and others who knew the deceased. The applicant can be inferred to have had an interest in at least the first of these. Indeed he said in a call with Joshua Edwards on 17 August 2015, "we're all in the same boat, we just, we want to know what happened mate". The inference to be drawn is that his interest in the body not being found outweighed any interest in the deceased receiving a burial and the comfort his children may have received from this. This is more consistent with guilt of murder than of manslaughter. 7. Consistent with the analysis above, and with the authorities, the question of whether post offence conduct is neutral as between a more and a less serious offence is fact dependent. In R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 the Court said at [40]: "We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases. And, to the extent that Heyes [R v Heyes (2006) 12 VR 401; [2006] VSCA 86] implies the contrary, in our view it should not be followed." (footnote omitted) 1. Subsequently, in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 the High Court said at [73]-[76]: "73 In R v White, in the Supreme Court of Canada, Major J said: "As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role." 74 In R v White, Major J went on to say that there may be cases where post-offence conduct, such as the accused's flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence that it might be found by the jury to be more consistent with the more serious offence charged. There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said: "The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute." 75 In Lane v The Queen, the Court of Criminal Appeal of the Supreme Court of New South Wales rejected the contention that a count of manslaughter of the accused's child should have been left to the jury as an alternative to murder. The Court held that the jury were entitled to take the post-offence conduct of the accused as evidencing consciousness of guilt of murder. In particular, the Court held that the lies told by the accused "alone were sufficient to provide the evidentiary foundation for an inference that … she acted with the intention of killing". Their Honours went on to say that the false accounts given by the accused "provide no factual foundation for an inference that the manner in which she killed [her child]" would establish manslaughter by criminal negligence. 76 It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife's body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife." (footnotes omitted) 1. In my view the above observations are equally applicable in the present case. The evidence was not intractably neutral. 2. The present case is very different to a case such as, for example, Meakin v R [2018] NSWCCA 288, which was relied on by the applicant. In that case the appellant and the deceased had been involved in an altercation in a hotel. The deceased left on foot and the appellant left in his vehicle. The Crown case was that the deceased was walking on the grass verge of the road when the appellant deliberately drove onto the verge striking him from behind, with an intention to, at least, cause grievous bodily harm. The Crown relied on evidence of consciousness of guilt. That evidence was, essentially, that the appellant failed to stop after the collision, drove through backstreets in order to avoid being seen, parked his car so as to hide it, and that he left for work the next morning without reporting any collision until later in the day. Macfarlan JA (with whom Hoeben CJ at CL and Fagan J agreed), found the post-collision conduct to be "intractably neutral" as between murder and manslaughter (at [136]). The facts in Meakin, however, make it distinguishable from the present case. Meakin involved what was, in effect, a "hit and run". There was no relationship between the parties other than one of prior animosity. Perhaps more importantly, the appellant was in a vehicle which was moving. Stopping and rendering assistance required active steps on his part. His position was very different from that here, where the appellant was, on the present argument, in the room with his dead or dying wife. 3. For the purposes of this ground it is enough that it was open to the jury to find the post-offence conduct was more consistent with the applicant having committed the offence of murder rather than manslaughter. However, based on the above, my own view (ultimately relevant to ground 4) is that the evidence of post-offence conduct was in fact more consistent with murder than with manslaughter. It follows that there can have been no error or miscarriage, or any "failure" by the trial judge, in not directing the jury that the evidence relied on as revealing a consciousness of guilt was "intractably neutral". I would not accept this ground of appeal. Ground 1: Directions on the use of lies 1. My rejection of ground 2 requires that I consider ground 1. This ground is in the following terms: "The trial judge erred when directing the jury as to how they could use evidence of post-offence conduct including lies, said to demonstrate consciousness of guilt, by not directing the jury: a) that the conduct could be used in respect of the manslaughter count as well as the murder count; and b) that they could only use the evidence as an indication of consciousness of guilt of murder if they were satisfied that the lies were not told out of a consciousness of guilt of manslaughter." 1. While the ground is expressed as if manslaughter was included on the indictment nothing turns on this. Having regard to the view I have taken on ground 2 the post-offence conduct was relevant to proving the applicant was responsible for the act causing death and to revealing the applicant's state of mind at the time. The essence of this ground is that further assistance was required to be given to the jury as to the use of the post-offence conduct given these different uses and that, in relation to the second use, the evidence was also consistent with (even if not equally consistent with) something less than an intention to kill or cause really serious injury. 2. The applicant stressed that, at the time the directions on lies and post-offence conduct were given, there had been no suggestion that manslaughter would be left to the jury. Thus, it was submitted, no consideration was given by his Honour to framing the directions on lies and post-offence conduct so as to distinguish between evidence probative of murder and evidence probative of manslaughter. It was, consequently, submitted the directions were deficient in the manner set out in the ground. In this regard it can be accepted that the directions, while immune from criticism at the time they were given having regard to the issues as they then stood, did not specifically address potential uses of the evidence with respect to the specific elements of murder as opposed to the lesser offence of manslaughter. The question raised by this ground is whether further directions were required having regard to the subsequent determination that manslaughter should be left to the jury. 3. As noted above, there was no issue on the appeal that the actions of the applicant militated against an innocent killing. Consistent with this it has never been suggested that, if the applicant was responsible for the killing, a purely accidental killing could not be excluded. That is, it was accepted the evidence established, that if the applicant killed the deceased it was by, at least, an unlawful and dangerous act. It was submitted that to use the evidence for proof of a state of mind consistent with murder, the jury was required to consider whether, and to what extent, it could go beyond its use to prove manslaughter. It was submitted that assistance was required in this regard. 4. The problem is highlighted by the order in which the jury was directed to consider the issues. Manslaughter was before the jury as an alternative to murder and the jury was accordingly directed manslaughter was to be considered in the event it determined the applicant was not guilty of murder. Assuming this was the course taken (cf King v The Queen (2012) 245 CLR 588; [2012] HCA 24 at [109]-[113]; and also at [65]), if the jury was satisfied the applicant was guilty of murder, no question of manslaughter arose. 5. While the jury was directed to decide murder before considering manslaughter, the order of reasoning with respect to the consciousness of guilt evidence was, arguably, different. Logically it required the jury to first ask if the evidence was probative of the applicant having killed the deceased, a step which was anterior to a finding of both manslaughter and murder. If satisfied the evidence was only explicable on the basis it implicated the applicant by tending to prove he was responsible for an act or acts causing death, and the jury was satisfied on all the evidence that the applicant had killed the deceased, the applicant was guilty of, at least, manslaughter. The next question would then be whether the evidence went further and was probative of the applicant's state of mind to kill or inflict really serious injury. 6. In Steer v R (2008) 191 A Crim R 435; [2008] NSWCCA 295, Simpson J, with the concurrence of McCallum J (as both their Honours then were), said at [68]-[69]: "The traditional directions given to juries where conduct evidencing consciousness of guilt is relied upon by the Crown includes a strong caution that the jury must, before acting on that evidence, be satisfied that the guilt of which the accused is said to be conscious is of the offence charged, and not some other offence or other discreditable conduct. Ordinarily, that does not occasion too much difficulty. However, where, as here, it is accepted by an accused that he is responsible for the death of the victim, but the issue is whether he is guilty of murder or the lesser crime of manslaughter, in my mind a real difficulty arises, calling for carefully tailored directions. It is not sufficient, in my view, to tell the jury that they must be satisfied that the accused is conscious of his guilt of the crime of murder as distinct from manslaughter; that imputes to an accused person an appreciation of the circumstances that differentiate murder from manslaughter, and of circumstances that provide a partial defence (either by reason of provocation, or self defence) to a charge of murder." 1. Her Honour referred to her earlier reasons in R v Sievers (2004) 151 A Crim R 426; [2004] NSWCCA 463, given in that case, in dissent. 2. In R v Trebeck [2018] QCA 183 the Queensland Court of Appeal considered a similar question. 3. A distinguishing feature, however, between those cases and the present, is that in each of those cases, there was no issue that the accused was responsible for killing the deceased. In each case, the question was murder or manslaughter. In each of those cases, the jury was therefore entitled to assume that the consciousness of guilt evidence was admitted, and relevant to, proof of a state of mind consistent with murder. That is, the assumption in those cases was likely to be that the evidence went further than proving responsibility for the killing given that fact was not in issue. In such circumstances, it can be readily appreciated that there is likely to be a clear need to ensure the jury is adequately instructed as to how the evidence might be used to prove murder as opposed to manslaughter. As Simpson J said in R v Sievers, after referring to the directions that were given in that case (at [79]): "The evidence was certainly capable of establishing that the appellant had a consciousness of guilt of having committed a crime; that crime being the killing of the victim. But that much had been admitted from the outset. That therefore was not an issue." 1. Her Honour further said, at [84]: "In my opinion, the only guilt of which the appellant could reasonably be said to have been conscious was of guilt of killing – even unlawfully killing – the victim. But that was not in issue. It was abundantly clear that his guilt of unlawful killing was accepted. None of the evidence in question – disposal of the weapon, cleaning up the crime scene, disposing of the body, false denials, or interstate moves – could in any way go to establish that the appellant was conscious that he was guilty, not of manslaughter, but of murder." (emphasis added) 1. Ultimately it is necessary to consider the issues in the particular case and the directions consequently required. In Ciantar, the Court said at [78]-[80]: "78 Trials which concern a one-count presentment with lesser included offences, or a multiple-count presentment or a case where the evidence adduced to prove a particular charge discloses the possible commission of other offences all raise the question of whether the post-offence conduct relates to a particular offence charged or to "other offences". Accordingly, in such cases the jury may have to be alerted to the fact that, before they can treat the post-offence conduct or lies as proof of guilt of the offence they are then considering, they must be satisfied, having regard to all the evidence, that a consciousness of guilt of such "other offence" does not provide a possible reasonable explanation for the lies. 79 … it is open to question whether as part of the directions on the use of post-offence conduct it is necessary or desirable for the judge to refer to any included offences which are not left to the jury. In Woolley it was said not — it was enough that the jury be made to understand that an accused may engage in post-offence conduct of the kind in question for reasons that do not indicate consciousness of guilt of the offence charged and that any defence explanations for the lies or conduct are put to the jury. In our view that remains the case. The directions to be given to the jury must depend on the issues in the case, and a lesser included offence is not in issue unless it is left to the jury. 80 The approach now followed in England which is reflected in R v Miah [[2003] EWCA Crim 3713 at [46]-[49]] has much to commend it: "In a murder case when there are issues on whether the defendant killed the victim and also on provocation, then it seems to us that lies could be relevant at two stages. First the Crown may rely on lies to support its case that the defendant committed the homicide at all. Secondly the Crown may rely on lies in support of its case that it can disprove provocation – the burden of doing so always being on the Crown. It is possible that the same lies will be relied on by the Crown for both purposes; but it is also possible that certain lies could be more useful to the Crown in relation to provocation, eg. to show that either the defendant did not kill as a result of having lost his self control or to show that what he did was not justifiable – using the tests and factors that were identified in Smith. We think that in a murder case where both the issue of homicide and provocation are contested and the Crown relies on lies to prove its case, then it is advisable that the Crown should state clearly in advance of speeches whether it relies on lies for one or both of the purposes we have set out above. This will assist a judge in fashioning the direction that he gives on the effect of lies. If, in such a case, the Crown relies on certain lies in support only of its case that the defendant committed homicide, then the judge should give a Lucas direction. At the same time he must warn the jury that even if it is satisfied that (a) the lie was stated and was deliberate; (b) it relates to a material matter and (c) there is no innocent explanation for it, then it must not regard that lie as of any assistance in demonstrating murder as opposed to manslaughter. That is, we understand, the effect of the decision in this court in R v Woodward [2001] EWCA Crim 2051 at paragraph 37, per Kennedy LJ. If, however, the Crown relies on the lies as support of proof of homicide and also as support for disproving provocation (in respect of either of the aspects set out by the House of Lords in Smith), then it seems to us that the judge should identify clearly for the jury the respects in which the Crown relies on the alleged lies. Otherwise the jury will be left in doubt, as this court held in the case of R v DT [2002] EWCA Crim 2958 at paragraph 25 per Kennedy LJ. Once the judge has identified for the jury the respects in which the Crown relies on the alleged lies, he should then tell the jury that it must consider first whether the lie was stated and whether it was deliberate. If the jury is so satisfied, then it must decide whether the lie was told in relation to (a) the issue of whether the defendant committed the homicide or not or (b) the issue of whether he did so having lost his self control or (c) the issue of whether his actions were, objectively, justified. The judge should then direct the jury that, whatever issue it thinks the lie may be relevant to, it can only take the lie into account if the jury is satisfied that there is no innocent explanation for it in relation to the issue [to which] the jury has decided that the lie is relevant. If the Crown only relies on the lies to disprove provocation, then, once again, we think that the judge must say so clearly to the jury. He must tell the jury that the lie is of no use to it in deciding the question of whether (if it is in issue) the defendant committed the homicide."" 1. While the discussion in R v Miah [2003] EWCA Crim 3713 set out above is equally capable of application to an alternative of manslaughter by unlawful and dangerous act, the word "may" at [78] of Ciantar, above, is important. In Mulvihill v R [2016] NSWCCA 259 this Court (Ward JA, Beech-Jones and Fagan JJ) observed at [227]: "Where there is an alternative charge, an assessment must be made as to whether evidence of consciousness of guilt serves to prove one charge or the other (R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 at [40]-[42], [64]-[68], [77]-[78], [81]-[87]). It will generally be for the jury to decide whether evidence of post-offence conduct is related to the crime charged or to some other culpable act (The Queen v Baden-Clay at [73], approving the decision of the Supreme Court of Canada in R v White [1998] 2 SCR 72). The issue is determined in light of the specific facts of the case, there being no 'rigid prescriptive rules as to when and in what precise terms an Edwards-type direction [that the jury can take into account a lie only if they are satisfied that it reveals a knowledge of the offence or some aspect of it and that it was a deliberate lie told because the accused knew the truth of the matter would implicate him in the offence] should be given' (Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [15])." 1. Thus, while above authorities provide some support for the applicant's argument, it is necessary to consider the particular facts of the case. Importantly in the present case the applicant's responsibility for the killing was in issue. The Crown prosecutor's address to the jury makes clear the way in which the evidence was relied on. That address focused, almost exclusively, on persuading the jury the applicant was responsible for killing his wife. The manner in which the address marshalled the evidence in support of the argument, therefore, relied on the evidence as proof of responsibility for the act causing death and not as proof of any particular state of mind at the time. 2. Thus, the Crown prosecutor commenced her address to the jury as follows: "Good morning. … this accused is responsible for his wife's death. The Crown suggests to you solid pieces of circumstantial evidence which, in combination show clearly the applicant murdered his wife" (emphasis added) 1. The Crown prosecutor then outlined the different parts of the Crown's circumstantial case. One of the circumstances relied upon was the "13 different versions". As to this the Crown prosecutor told the jury: "The Crown suggests that these were lies which the accused told people, including the police, because he was aware of his guilt, and he was conscious that he had killed his wife in the context of their deteriorating marriage and separation, and the deceased having moved on into a new relationship." 1. While the reference to awareness of guilt was necessarily a reference to guilt of murder, it does not follow that this reflected an expansion of the matters in issue or how the evidence was relied upon. As can be seen, in the same sentence, the Crown prosecutor made clear that what the applicant was "conscious" of was that he had killed his wife. Following the above, the Crown prosecutor addressed in more detail with respect to each of the various circumstances. When she came to the issue of lies, she simply set out a narrative of the different accounts given by the deceased. There was no submission as to the use of the evidence to prove any particular state of mind. 2. Reliance was also placed by the Crown prosecutor on the applicant's conduct in the days following the deceased's disappearance which included the applicant's failure to contact hospitals in the first two days (and not doing so until he was prompted), his failure to contact the deceased's father, and his insistence that his marriage was stable. The Crown submission was this was not evidence of "a husband who is truly concerned about the whereabouts of his wife", "conduct consistent with someone who's uninvolved in [her] disappearance", and "not conduct consistent with an innocent person". 3. Also included in the Crown's list of circumstances relied on in proof of the offence was the applicant's portrayal, to the police and the media in the period following the deceased's disappearance, of his relationship with the deceased as a happy one, whereas there was abundant evidence the deceased had moved on and had no intention of resuming cohabitation. The Crown submitted the account of the happy relationship was to "divert suspicion from himself", a submission necessarily referencing suspicion as to responsibility for the killing, not the specific crime. The account of a happy relationship was also interspersed with the applicant's assertion that the deceased had told him a $40,000 bank withdrawal was to pay for a "hit man". The Crown submitted the applicant had "just brought up that story to try and divert attention from him as the person responsible for his wife's disappearance". Again, this was a submission that the evidence established responsibility for the killing as opposed to any particular state of mind. 4. Nor did the Crown prosecutor rely on other "post-offence conduct" as proof of any particular state of mind. Reliance was placed on the mobile telephone records which, with other evidence pointing to the applicant being the last person to see the deceased, tended to suggest the applicant was responsible for the disposal of the body. Like the lies, this was simply part of the Crown's case directed to establishing the applicant had killed the deceased. 5. It was only at the end of her address, having outlined the various parts of the circumstantial case and having sought to anticipate some potential defence arguments, all directed to establishing responsibility for the killing, that the Crown prosecutor referred to the elements of the offence. She said this: "Members of the jury, as I said to you in my opening address, there are essential elements of the charge of murder and it's those essential elements that the Crown must prove beyond reasonable doubt for you to find the accused guilty. It's not the truth of every piece of evidence and every fact that you've heard during the course of this trial. The first element is that the accused consciously and deliberately; secondly, did an act; thirdly, that caused the death of the deceased or substantially contributed to her death; and fourthly, that at the time of the act he intended to cause her grievous bodily harm, which is really serious injury, or to kill her. The Crown case is that the accused was so angry and so bitter that, yet again, this man Billy Mills had come into his wife's life and threatened the comfortable future that he believed he had with her, owning their three properties and their joint assets, which according to him he'd paid for, and that he assaulted her with such force that he caused or substantially contributed to her death. Whether he hit her, punched her, strangled her or all three, we do not know. But what the evidence does show is that this accused had the motive and the anger and the rage to have caused her death and in doing so clearly had the intention to cause her, at the very least, really serious injury. To have had that intention at that time of doing the act that killed her doesn't exclude him perhaps regretting at a later stage what he did or even feeling sadness at a later stage at what he'd done, but he was so enraged at the moment of his physical act the Crown suggests he clearly intended to cause her really serious injury, at the very least, if not to kill her. If this had just been an accident, members of the jury, you might expect he would not have gone to such lengths to dispose of her body such that it has never been found, nor would he have gone to such lengths in attempting to cover his tracks and set up an appearance of innocence with the text messages and the like, as well as initially lying to people about having had no contact with the deceased whatsoever on the night of Saturday 14 March 2015." 1. While the passage above referred to parts of the post-offence conduct as inconsistent with an accident, nothing was said as to the use of such evidence to prove the intention to cause, at least, really serious injury. The total extent of the address with respect to this element was that "the applicant had the motive and the anger and the rage to have caused her death and in doing so clearly had the intention to cause her, at the very least, really serious injury". Thus, the evidence relied on to prove a state of mind consistent with murder, did not include the post-offence conduct. Further, given the manner of the Crown address, it was quite open to defence counsel to say, as he did at the opening of his address to the jury, that the Crown address had "almost skipped over" proof of the mental element of the offence (of murder, it being the only charge before the jury at that stage). 2. It follows from the above that the jury can have been in no doubt that the Crown relied on the post-offence conduct evidence to prove responsibility for the killing rather than as evidence establishing the mental element of murder. 3. That is not the end of the matter. The Crown's reliance on the evidence in that way does not rule out the possibility the jury used the evidence as proof of the mental element of murder. However, in circumstances in which it was not suggested by the Crown that it could do so, the absence of a request for the directions now said to be necessary takes on a different quality. 4. Here, as discussed above, the evidence of lies and other post-offence conduct was not neutral as between murder and manslaughter. Directions as now sought had the potential to focus the jury's mind as to this, and had, at least, the potential to disadvantage the applicant. 5. The approach taken by defence, in raising an issue as to proof of the mental element for murder and the potential for a verdict of manslaughter, appears to have taken the prosecution by surprise. I do not intend this to be taken pejoratively. Insofar as the Crown prosecutor focused only on responsibility for the killing, she walked into something of a trap (albeit one that was ultimately ineffective). It was not self-evident that whether the deceased was "hit … punched … strangled … or all three" by the applicant, that the applicant "clearly had intention to cause her, at the very least, really serious injury". Defence was, as a result, able, at the very outset of his closing address, to point out that the Crown had effectively overlooked an essential aspect of proof. Having raised it counsel chose to say little about it, essentially leaving it as a fallback position. In these circumstances, there was an advantage in also having the trial judge say little about it. The applicant was able to contest the charge on the basis he was not responsible for the killing but with the proviso that, if his argument was rejected, he could not do worse than manslaughter. Given that this proposition was founded on the premise the Crown had overlooked the mental element, it was to the applicant's advantage to perpetuate the assumption in the Crown address that the consciousness of guilt evidence went only to responsibility for the killing. Directions inviting closer scrutiny were, for the reasons given in relation to ground 2, apt to support the availability of the post-offence conduct as evidence probative of a mental state consistent with murder. Such directions were, therefore, potentially disadvantageous. Not seeking such directions was forensically rational. 6. In a context where there was a rational forensic reason to not seek directions as to the use of the post-offence conduct to prove the applicant's state of mind the discussion above with respect to the nature of a relevantly fair trial in an adversarial context is relevant. In short, given the forensic advantage to not seeking the directions it is now asserted should have been given, there was no relevant miscarriage. This conclusion is independent of any consideration of r 4.15 of the Criminal Appeal Rules (other than to the extent that that rule reflects the proper approach to s 6(1) of the Criminal Appeal Act). 7. It follows from the above that I would dismiss this ground of appeal. Ground 3: A failure to direct in a "fair and balanced way" as to reasonable hypotheses consistent with manslaughter 1. As noted above, the applicant submitted in oral argument that ground 3 was a consequence of the failure complained of in ground 1. It follows from my rejection of ground 1, there was failure as complained of in ground 3. Nonetheless, it is appropriate that the ground be addressed separately. 2. The jury was directed that the version given by the applicant to Joshua Edwards amounted to evidence of an assault capable of being regarded as dangerous within the meaning of that term for the purposes of unlawful and dangerous act manslaughter. In this context his Honour directed the jury that if it regarded this evidence of an assault as a reasonably possible version of events it would be "relevant to your consideration of whether the Crown has proved, beyond reasonable doubt the element of intention [for murder]" and then directed the jury as to the availability of a verdict of manslaughter in the event it had such a doubt. The jury was, however, further directed that a verdict of manslaughter was not dependent on finding that the version given to Joshua Edwards was possibly true. 3. In the course of re-directions his Honour told the jury: "There are two other things I wanted to raise with you before you go. The first matter relates to the question of the possibility of manslaughter being considered by you. I just wanted to clarify something that I think I made clear, but I am just not sure that I did and I want to ensure that I did. This is the possibility of you returning a verdict of not guilty of murder but guilty of manslaughter. I referred to the evidence of what Joshua Edwards said the accused said on the morning of 2 April 2015 and I said something to the effect that if you thought that that was a version that might reasonably be true, it may be relevant to your consideration of whether the Crown had proved the element of intention, that is intention to kill or at least cause really serious bodily harm beyond reasonable doubt. I just want to stress two things in relation to it. Accepting that that might be a reasonably true version of events, does not necessarily mean that you would have a doubt about whether the Crown had proved the intention element, but it could be relevant to your consideration of it. But even if you do not accept that version as one that could reasonably be true, it remains that you have to be satisfied by the Crown that it has proved that element of intention. If you have a doubt about that – Mr O'Connor submitted that you should and you heard the Crown's submission as to why you should not – then you would, if you had a doubt about whether the Crown had proved that, you would then consider whether the Crown has proved, beyond reasonable doubt that there was an unlawful and dangerous act by the accused, deliberately done, that caused or was a substantial cause of the death of Ms Edwards. So that evidence of Joshua Edwards is relevant, but the possibility of you considering manslaughter is not dependent on you accepting that. It was, is, a matter generally relevant to whether the Crown has proved the intention element." 1. His Honour, later, in response to a question from the jury, gave further directions to the jury as to the difference between murder and manslaughter. In doing so his Honour again directed the jury that the availability of a verdict of manslaughter was not dependent on acceptance of the version given to Joshua Edwards as being reasonably possible, but that rather, irrespective of that version, it remained for the Crown to prove the element of intention. His Honour reminded the jury that defence counsel had submitted it would not be so satisfied, and that the Crown had submitted it would be so satisfied. 2. The applicant now submits that the trial judge should have canvassed with counsel possible alternative bases for a verdict of manslaughter, referring to Baden-Clay at [33]. It was submitted that his Honour should have enquired with counsel as to whether there were any other hypotheses consistent with manslaughter as had occurred at the trial in Baden-Clay at [60]-[61], and elaborated on these scenarios more fully in his Honour's summing up. 3. The applicant stressed that, in this matter the applicant had not, by giving evidence, narrowed the range of available hypotheses (cf Baden-Clay at [54]-[55], [63]) and relied on the following passage from Baden-Clay at [62]: "A trial judge must adequately direct the jury 'both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part'; the trial judge is under a 'duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused' (emphasis added). No complaint is made in this Court that the directions given to the jury were inadequate. The directions 'put fairly before the jury the case which the accused' made. The trial judge left manslaughter to the jury and put to them the four hypotheses identified by defence counsel." (footnotes omitted) 1. Putting aside the version given to Joshua Edwards as to which the jury was directed and in relation to which there is no complaint, the present case is concerned with proof of intention. The "hypothesis" consistent with manslaughter that was suggested to be available was that the applicant assaulted the deceased without an intention to kill or inflict really serious injury. I doubt that, in the circumstances of this case, this is usefully to be regarded as a "hypothesis consistent with innocence". That expression is usually employed in the context of circumstantial cases to assist with alternative factual scenarios which may be open on the evidence. In contrast, proof of this element is a matter of inference as to the accused's state of mind which does not require a circumstantial evidence direction: La Fontaine v The Queen (1976) 136 CLR 62 at 71-72, 80-81, 83, 85-87; [1976] HCA 52; R v Tillot (1991) 53 A Crim R 46 at 50; Rogerson v R (1992) 65 A Crim R 530 at 545. While those cases do not hold that such a direction cannot be given if it is considered appropriate, it was not required. Here, the jury did not require assistance to understand that, with respect to the inference the applicant intended to kill or inflict really serious harm, the binary alternative was the applicant did not have that intention. If anything, such a direction, in having the jury consider if it was reasonably possible the applicant did not have the requisite intention, had the potential to undermine the onus of proof (see La Fontaine, Tillot and Rogerson as referred to above). 2. It follows from the above that there was nothing more that his Honour was required to do with respect to directing the jury as to reasonable hypotheses consistent with manslaughter. In my view this ground of appeal fails. Ground 4: Unreasonable verdict 1. The test to be applied to a complaint that the verdict is unreasonable within the first limb of s 6(1) of the Criminal Appeal Act was explained in Pell v The Queen at [43]-[45] as follows: "43 At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself: "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 44 The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms: "But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt." (footnote omitted; emphasis in original) 45 As their Honours observed, to say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M." (footnotes omitted) 1. In Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78, Bathurst CJ (with whom Johnson and Fullerton JJ agreed), relevant to the present case noted (at [86]): "In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]-[48]." 1. Here, as noted above, the complaint that the verdict is unreasonable does not argue the applicant should have been acquitted outright. The ground is premised on the applicant's responsibility for the killing having been proved. The complaint is limited to the contention that the verdict of murder is unreasonable as manslaughter could not be excluded. The question raised is whether it was open to the jury (in the sense that expression is used in s 6(1) of the Criminal Appeal Act) to find beyond reasonable doubt that the applicant acted with an intention to kill or cause really serious injury. 2. The question is a simple one, although the answer is not. Once it is accepted that the applicant was responsible for the act or acts causing death, was there sufficient evidence to prove beyond reasonable doubt that the acts were done with an intention to kill or cause really serious harm? The respondent, having discounted (legitimately, for the reasons that follow) the possibility the version given to Joshua Edwards was true, submitted: "The absence of any other evidence as to what occurred in circumstances where the applicant was the only person who knew what happened impacts logically on the availability of the alternative hypothesis (Baden-Clay at [50]-[51]). The applicant's contention is speculative and the rejection of it entailed in the jury's verdict was entirely reasonable." 1. Even if the applicant's unique position as the only person who was aware of what led to the deceased's death might impact on the availability of alternative hypotheses, it does not follow that the applicant's contention can be dismissed as speculative, any more than it is possible to dismiss the respondent's contention that the applicant acted with an intention to kill or at least inflict really serious injury as speculative. The contention raises no more than an issue of proof beyond reasonable doubt. Baden-Clay, relied on by the respondent in this regard, does not say anything different (see for example at [49], and at [62]). There, the High Court found that the alternative hypothesis relied on by the Court of Appeal to overturn the verdict (that the respondent struck the deceased in the course of a struggle and the deceased "died as the result of a fall, or in some other manner" was "not available on the evidence" and thus speculative: at [3]-[5]). The High Court made it plain, however, that rejection of the alternative hypothesis did not prove murder. It remained necessary to consider whether the requisite mental state was proved having regard to the whole of the evidence (see at [64]). Their Honours ultimately accepted (at [69]) that it was "not unreasonable for the jury to conclude, on the whole of the evidence, that it tested credulity too far to suggest that his evident desire to be rid of his wife was fortuitously fulfilled by her unintended death". This was a conclusion reached in relation to the particular facts of that case. 2. That conclusion can be contrasted with the present case. Here the evidence suggested that the applicant wished to be rid of, not so much his wife, but of Mr Mills. While he was angry with his wife, and concerned about the prospect of a property settlement, his wife's continued existence did not present some acute problem as it did for the respondent in Baden-Clay (see Baden-Clay at [71]). That is not to say proof in the present case was lacking. It is merely to underscore that the question is ultimately the adequacy of the evidence in this case to support the inference the applicant acted with the requisite mental state. 3. It is necessary to consider all of the evidence relevant to the issue of intent. It is convenient to divide the evidence into evidence tending to support an inference of an intention to kill or inflict really serious injury and evidence that suggests an inference as to such a state of mind which cannot be drawn beyond reasonable doubt. 4. As noted above, it was also submitted by the respondent that an inference consistent with murder can more readily be drawn as a result of the absence of any explanation from the applicant given he was (on the scenario posited) the last person to see the deceased alive and was responsible for the disposal of her body, such that the circumstances of her demise were exclusively within his knowledge: Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, and see Baden-Clay at [50]-[51], [57]. Given s 20 of the Evidence Act 1995 (NSW) and the accused's (now applicant's) right to silence, caution is required in this regard. Even where the facts are peculiarly within an accused's knowledge, "the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution": Weissensteiner at 228, per Mason CJ, Deane and Dawson JJ. In the present case, the applicant's decision not to give evidence was in the context of his case at trial being that he had nothing to do with his wife's disappearance. On this basis, it was squarely in issue as to whether circumstances of his wife's demise were uniquely within his knowledge. No issue was raised at trial as to more readily drawing an inference consistent with guilt as a result of the applicant's silence. As discussed above in the context of ground 1, the applicant may have taken the view, given the paucity of attention given by the Crown to proof of the mental state for murder, that he could not do worse than manslaughter, potentially explaining his silence. I am as a result, hesitant to rely on the reasoning in Weissensteiner. It is convenient, therefore, to, at least in the first instance, consider the matter without reference to such reasoning. 5. Prior to dealing with the issue of proof of the requisite mental state based on an inference drawn from all the evidence it is necessary to consider the one alternative hypothesis as to which there was positive evidence. The version recounted by Joshua Edwards, and other related versions 1. The applicant recounted a version of events to his sons, Joshua and Zac, which, as set out above, suggested a struggle over an iPad, in the course of which, according to Joshua, the applicant said he "slammed her on the floor and she hit her head". The applicant having given this version was also said to have repeated, "I should have walked away". 2. As noted above, it was evidence of this version of events that prompted the trial judge to leave manslaughter to the jury. It does not follow that it was a version of events that cannot be eliminated as a reasonable possibility, or even one that compels a conclusion of manslaughter if accepted. 3. If this version of events is accepted as being open as a reasonable possibility, it follows that the events were the result of a spontaneous eruption of violence. It may also be accepted that, on this version, the result of the violence (that is, death) was not intended and the version therefore provides some support for a verdict of manslaughter. 4. Conversely, however, the language of "he slammed her on the floor" could support an inference of an intention to inflict really serious injury. However, if this was the totality of the evidence I would not accept that such an inference could be drawn beyond reasonable doubt. It is, of course, not the totality of the evidence and it needs to be considered and weighed against all the evidence in the case. 5. Prior to considering, if the version recounted by Joshua, if true, is inconsistent with murder, it is convenient to consider whether the version can be excluded as reasonably possibly true. This requires consideration of the entirety of the particular account. Importantly, in this respect, the applicant said that, having hit her head the deceased "got up and went to bed". This is not consistent with the other evidence in the case insofar as it suggests this was the end of the interaction with the deceased or her body and consequently raises doubts about the reliability of the account given to Joshua. 6. Further, quite apart from whether the use of the word "slammed" excludes an action with something less than an intention to inflict grievous bodily harm, the other party to the conversation, Eli, did not suggest the applicant used the word "slammed" or indeed make any reference to the deceased hitting the floor. 7. After the applicant gave the version to Joshua and Eli which referenced a struggle, he was prompted to disclose this further information to the police. In the resulting interview he told police that when he grabbed the iPad it twisted and "she's hit the ground" (with no reference to her head striking the floor) and she "opened up that cut that I did a couple of weeks ago". While there was, therefore, a reference in the version given to the police of the deceased hitting the ground, there is nothing in the version recounted by Eli, nor in that recorded by the police, to suggest the event was the cause of death. The version given to police, if anything, appears to have been directed to explaining the potential presence of blood at the Riverdale Court property. 8. It should also be noted that the applicant also told a friend, Mr Wheeler, that he and the deceased had a "tussle". In this version the applicant said "I think I twisted her arm and she fell to the floor". Again, while this version was similar, it provides no real evidence of any mechanism which could have led to death. This has obvious implications for the reliability of the version of the conversation given by Joshua Edwards as a basis for a verdict of manslaughter. 9. Ultimately, I am of the view that when all of the evidence is considered, the scenario described by Joshua Edwards (that the complainant hit her head on the ground with force in the course of a struggle with the applicant) is excluded as a reasonably possible version of events. It was one of a multiplicity of accounts given by the applicant. Even as regards this particular account, only Joshua recalled the applicant saying the deceased hit her head on the ground with force despite Eli also being present and giving evidence of the conversation. When the account was ostensibly repeated to police a short time later, there was no reference to the deceased's head hitting the ground, let alone with force. The version was itself, on the argument made on this appeal, given in a context that must be accepted to be false (or at least deliberately deceptive). That is because the applicant said that after the scuffle he described, the deceased got up and went to bed, whereas the applicant accepts for the purposes of argument on the appeal that he was guilty of manslaughter, from which it follows that he was responsible for disposing of the deceased's body. There is, in short, not only some doubt as to precisely what the applicant said to Joshua and Eli (and whether it could provide a mechanism for the death) but also no basis on which to think that this version, even if given as recounted by Joshua, was other than an additional dishonest attempt to explain the death. 10. Additionally, I am entitled to have regard to the whole of the evidence including that part of the lies and post-offence conduct, and the evidence of motive, that I regard as more consistent with murder than with manslaughter. These matters are discussed further, below. 11. It follows from the above that it was open to the jury to reject the version recounted by Joshua as reasonably possible. Inference of an intention to inflict, at least, really serious injury 1. Having excluded the version recounted by Joshua as a reasonable possibility, it is necessary to consider whether the whole of the evidence supports an inference, beyond reasonable doubt, that the applicant acted with an intention to kill or at least inflict really serious injury. I will consider first the evidence that assists the applicant before considering that which points in the other direction. Some evidence is, of course, ambivalent or cuts both ways. Evidence supporting the contention an intention to inflict at least really serious injury could not be proved beyond reasonable doubt The manner in which the Crown put its case 1. It is convenient to repeat what the Crown prosecutor said in her closing address: "The Crown case is that the accused was so angry and so bitter that yet again this man Billy Mills had come into his wife's life and threatened the comfortable future that he believed he had with her, owning their three properties and their joint assets which, according to him, he paid for, and that he assaulted her with such force that he caused or substantially contributed to her death. Whether he hit her, punched her, strangled her or all three, we do not know. But what the evidence does show is that this accused had the motive and the anger and the rage to have caused her death and, in doing so, clearly had the intention to cause her, at the very least, really serious injury. To have had that intention at the time of doing the act that killed her doesn't exclude him perhaps regretting at a later stage what he did or even feeling sadness at a later stage at what he'd done, but he was so enraged at the moment of his physical act, the Crown suggests, he clearly intended to cause her really serious injury, at the very least, if not to kill her. If this had just been an accident, members of the jury, you might expect he would not have gone to such lengths to dispose of her body such that it has never been found, nor would he have gone to such lengths in attempting to cover his tracks and set up an appearance of innocence with the text messages and the like, as well as initially lying to people about having had no contact with the deceased whatsoever on the night of Saturday 14 March 2015. Members of the jury, there can be no doubt that Sharon Edwards is dead. She had absolutely no reason to disappear and every reason to stay living the wonderful and full life that she had[.] It was this accused who came out of the police station on 17 March 2015 after being interviewed about his wife's disappearance and said to his sons, 'I'm sorry. I'm so sorry.' It was this accused who told lies about what had occurred on the night his wife disappeared. It was this accused who had the motive and the anger to commit this act, and it was this accused who said in the hearing of his son Josh, a son who desperately wanted to believe his father had nothing to do with his mother's death, 'I should've just walked away. I should've just walked away'." 1. The argument that the applicant was angry with the deceased gives support to him having assaulted her. Many assaults, while committed in anger, are not committed with an intention to kill or inflict really serious injury. As discussed above, at the time the Crown prosecutor addressed, manslaughter had not been raised as an issue, cf Sheen v R (2011) 215 A Crim R 208; [2011] NSWCCA 259 at [82]-[84]. While the Crown prosecutor submitted the applicant was guilty, based on proof of all elements including the requisite mental element for murder, in fairness, as detailed in relation to ground 1 above, the address was directed to establishing responsibility for the killing, it being, essentially, assumed that proof of the requisite mental state necessarily followed. It would be wrong to place too much weight on the Crown prosecutor's address to support a contention that manslaughter was not excluded. It remains necessary to consider the actual evidence. The injury to the hand 1. The Crown relied upon the injury to the applicant's hand to prove his involvement in the act or acts causing death. That injury was, of course, consistent with the applicant having struck a blow or blows to the deceased. Insofar as it established an assault by the applicant it suggested that he did not use a weapon. Had the applicant, who is not a large man, acted in accordance with a plan to kill, or even inflict grievous bodily harm on his wife, it was more likely that he would have availed himself of some form of weapon to do so. This evidence is, therefore, arguably consistent with a spontaneous outbreak of violence which did not involve the formation of an intention to inflict at least really serious injury. 2. Against this, while there was no evidence as to the amount of force that might have been expected in order for the applicant to break his fifth metacarpal, the jury was entitled, as am I, to conclude that, as a matter of ordinary human experience, the level of force must have been significant. This undermines, to a large extent, the force of this evidence in supporting the contention the verdict of murder is unreasonable. In this regard, the observations in Baden-Clay at [78] are relevant. The Court said: "Finally, the jury could take into account the absence of any signs that a weapon was used to cause the death of the deceased, and make their own judgment about the respondent's intention at the time, bearing in mind the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm." 1. While the above observation is arguably less apposite to the present matter given that, in Baden-Clay, the body was located with an absence of skull fractures which militated against an indirect death as a result of a fall, it does not lose all force. The evidence did not establish that the applicant wished to be rid of his wife 1. There was evidence of the state of the relationship between the applicant and the deceased. Clearly it was not good. 2. However, as noted above, unlike in Baden-Clay, there was no immediate imperative driving a need for the applicant to be rid of his wife. If anything, he wanted to be rid of Mr Mills. But to say that this feature of the case is more or less compelling than some other case cannot answer the question posed. Whilst the applicant may have wanted his marriage to continue, and therefore he did not want to be "rid of her", as was the situation in Baden-Clay, he must have realised that, whatever he wanted, the marriage was over. He was clearly angry about this. That, of course, does not mean that he intended to kill his wife, or to inflict serious harm on her. However, there was also evidence of the applicant's concerns around the end of the relationship which are analysed further below in the context of the evidence tending to support an inference of an intention to inflict, at least, really serious injury. Evidence supporting the contention an intention to inflict at least really serious injury was proved beyond reasonable doubt Evidence of post-offence conduct 1. The evidence of post-offence conduct has been discussed in detail above. As there explained, that evidence was not intractably neutral. It was more consistent with the applicant having committed murder than with an offence involving some lesser state of mind. While on its own I would hesitate to find this evidence established the requisite intent beyond reasonable doubt, it is not to be considered on its own. Evidence of planning 1. Evidence of planning, if present, would suggest an intention to inflict at least reasonably serious injury if not to kill. Evidence that the applicant planned to assault the deceased was inconsistent with a scenario in which in the course of a spontaneous assault the applicant assaulted the deceased causing greater injury than intended. Put another way, a planned assault not intending to cause serious injury was unlikely. There was some evidence suggestive of planning, as discussed below. The location of the ute 1. On the hypothesis we are asked to consider, the deceased was killed in the house at Riverdale Court and the applicant disposed of the body. The overwhelming inference is that the applicant used his ute to dispose of the body. The location of the ute is significant in this regard. 2. The applicant told police in the recorded interview on 17 March 2015 that he had parked his ute in the garage. Mr Mills (who was presumably not familiar with the applicant's vehicles) recalled seeing the ute in the garage when he arrived at the house with the deceased. He was specific in his recollection which included seeing tools in the tray. In an exchange with an officer at the counter of the police station in the days after the disappearance, the applicant told the officer he put his car in the garage. He also told this officer that the deceased came home with friends and when he did not agree to them staying she went to bed cranky. He told this officer he then moved his ute from the garage and put the deceased's car in the garage before returning to Lawrence. This did not provide an explanation for why the applicant put his ute in the garage. 3. The above evidence compels a conclusion the applicant parked the ute in the garage prior to the deceased returning to the house on the night of Saturday, 14 March. 4. There was evidence that it was unusual for the applicant to park in the garage. Evidence was given by a neighbour, Mr Wigg, who lived opposite the Riverdale Court residence. He said the applicant drove a white HiLux utility and a dark Subaru Forester. He said that he saw the applicant at the house once every couple of weeks, doing the lawns or gardening. He said the applicant would normally park the utility on the grass next to the driveway and the Subaru on the driveway. He said he could recall one occasion when he saw the ute parked in the garage when the applicant was "just unloading something but normally it would be outside". Another neighbour, Mr Perks, confirmed that the applicant usually parked his vehicles on the driveway or grass and that, when the garage door was up, there would usually be a red Holden Cruze in the garage (which was the deceased's car). While there was inconsistent evidence given by neighbours about whether the applicant was at Riverdale Court with the ute or the Subaru on 14 March (Mr Wigg referring to the Forester and another neighbour, Ms Cottone recalling seeing the ute), the evidence that it was the ute, which included statements by the applicant, was reasonably clear. 5. The evidence of the applicant parking his ute in the garage, particularly in circumstances where such a course was not usual, is significant. Given the overwhelming inference is the ute was used to transport the deceased's body from Riverdale Court, this evidence gives strong support to the Crown case on the mental state for murder. The lights were out 1. The evidence established that, when the deceased returned to the Riverdale Court premises with Mr Mills, the lights were out. This might be thought to have increased the possibility the deceased, with Mr Mills, would enter the house, where the applicant was waiting. Of course the deceased was likely to become aware of the applicant's presence as a result of the ute being in the garage (as in fact occurred). Whether the applicant overlooked this eventuality or there is some other explanation for turning the lights out cannot be known. 2. It was the presence of the applicant's ute in the garage which caused the deceased to leave, in order to take Mr Mills back to Mr Weatherall's house. At this point it is not known whether the applicant expected the deceased to return, what the state of the lighting was when she did return, or what the applicant was doing at that time. Nonetheless, while it is not possible to know the precise reason the applicant turned out the lights prior to the deceased first returning to the house, it does suggest some planning with respect to the deceased's arrival. 3. Further, the applicant had told the deceased directly not to bring Mr Mills (or anyone else) back to Riverdale Court. He may therefore be thought to have had an expectation the deceased would return there alone. If this was the case, he was waiting for her in darkness with the ute in the garage. Don't bring him back here 1. The applicant did not want Mr Mills to come back to the Grafton home. By this stage he must have realised he could not stop the deceased and Mr Mills spending time together. On one view, the applicant may not have wanted Mr Mills there so he could confront the deceased alone. A more benign view is that, whatever the state of the relationship between the deceased and Mr Mills, the applicant could not countenance them spending the night together in a house he had some claim to. The efficiency of the clean-up and disposal of the body 1. While evidence of blood, which was overwhelmingly likely to have been the deceased's, was found on the headrest of an armchair, the quantity and location (including the fact that it was the deceased's home) were not such that it could be concluded the blood was connected with the deceased's death. Accepting that the applicant killed his wife when she returned to Riverdale Court it follows that the deceased died in circumstances which either left no significant forensic evidence, or that the applicant was able to successfully clean the area so as not to leave any significant forensic evidence. It is also the case that the applicant was able to dispose of the body in a manner such that it has never been found. 2. As to the absence of forensic evidence, given the regular presence of both the applicant and the deceased in the house, items like DNA and fingerprints were neutral. The failure to find (significant) evidence of blood is, however, suggestive of either a killing that did not involve significant bleeding or very thorough cleaning. It is difficult to place weight on the former – for example, a skull fracture from a fall could cause death without significant bleeding as could deliberate strangulation. Thorough cleaning after killing the deceased, is, however, suggestive of a composure not consistent with the panic that might be expected in the case of unintended death. It might also be noted that some of the applicant's statements included innocent explanations for the presence of both his and the deceased's blood, suggesting the applicant expected the police to find such blood. 3. With respect to the disposal of the body there was evidence that the applicant was familiar with the surrounding wilderness areas in which there were numerous remote areas, swamps and dams that could not all be searched. While, for the reasons discussed above, the applicant's willingness to dispose of the body was not neutral, it must be accepted that it would not have been overly difficult for him to do so (supporting the possibility that he could have done this without planning). Duct tape 1. On 18 March 2015, the applicant told his sons Joshua, Zac and Eli, in the context of the police having taken possession of the Lawrence house, that "the police will find duct tape at home". Joshua said the applicant was worried about this. The comment did not make sense to the applicant's children. On the scenario now posited there is an implication the duct tape is connected with the offence. Whilst it is suggestive of a level of organisation it is, however, difficult to know whether it was organisation that preceded the killing of the deceased. Motive – relationship/ financial 1. The evidence was that the deceased regarded the marriage as over and had made this clear to the applicant. The Crown case was that the applicant did not want to face her leaving him for Mr Mills for "emotional and/or financial reasons". 2. There was strong evidence the applicant was not willing to accept the relationship was at an end. The evidence also suggested the applicant resented the prospect of financial loss as a result of the separation. 3. In Facebook messages to her closest friend, Kristine Kennedy, in late 2013, the deceased discussed her relationship and hopes for a future with Mr Mills. By the end of 2013 the situation had been revealed to the applicant. The deceased sent the following messages to Ms Kennedy (included in Exhibit A): 17.12.2013 7:55pm U beta take care of yrself just rest. John knows I saw billy. He read my texts. Thank goodness I deleted the provocative ones. 4.2.2014 6:09pm Well had the talk, He hit the roof n said he wont finish the renos n will pull it down. Said he wont buy me out. I said well the solicitor will get the money. He said he knew this would happen when Ariel left. Then after a while he started to be super nice n asked me not to make any decisions till the renos are finished. I said im going to give him a time frame cos I don't want it dragging on. Billy asked if I mentioned him to john I said no even if I hadn't reconnected with him I still have to do something. 28.3.2014 6:33pm Wd u believe John took me to dinner last night then the pics… He is being superrrrrr nice. But I haven't given in. He asked me if I'll ever make love with him again n I said well it all depends what u do with this house I like n if u make a genuine offer. Don't worry darl I'm strong. Anyway I feel like id be cheating on billy. I only want him She said not to tell the boys cos everything will just fall into place when I move but of course big mouth dad blabbed to josh the other day. 29.06.2014 8:33am I don't think he mentioned b told told josh I'm leaving John. I was just going to let things sort themselves out but josh is very good about it. I'm just telling people that I'm moving in while he finishes renos so colleagues n acquaintances don't need to know the real truth yet 13.1.2015 5:25pm …im gonna retire in Forster. I just love it and it brings back memories. Its half way too. CK: Ok I'll check, anymore about John? 23.1.2015 4:28pm SE: What about him? CK: Have u said anything about BB to him. SE: Nah he wont listen to anything about us not being together. SE: J just turned up CK: Ok ok good luck, did u no he was coming? SE: No…. bit of a worry CK: Mmm he must be checking up??? SE: I'd say so 2.2.2015 8:53pm CK: How did bb go at specialist SE: haven't spoken yet. He's gonna ring afer 9 but now I'll have to turn my phone off CK: Great, but did u ask J y he came over SE: Said he needs to mown on the morning n has to get food CK: Yeah right SE: Mmm we'll see what he tries tonight. 1.3.2015 8:41pm Oh no john is on phone n asked where I stayed sat night. So I said Billy's 1. Mr Mills confirmed his relationship with the deceased and said she had told him that she had told the applicant about it and the applicant "went ballistic". It was also apparent the deceased was acting on her plans to end the marriage. She told a friend, Alison Roach, that she had obtained advice from a solicitor about separation (and that she had done so was confirmed by the solicitor). The deceased had told other friends such as Dianne McGavigan that her marriage was over and she regarded her future as being with Mr Mills. Another friend, Ms Watts, said that the deceased told her that she had told the applicant that she was staying with Mr Mills when in Sydney. The deceased also said something similar to Ms Abrahall but also told her that the applicant "got very angry" when the deceased said she was seeing Mr Mills in Sydney and "had the shits ever since". 2. The deceased's father, Mr Wall's evidence was that the deceased thought the Grafton house would be her share of the estate. This was despite the fact the Grafton house was bought with money the applicant inherited. Mr Wall explained that this was because the deceased had contributed to the Lawrence property where the applicant lived. 3. Ms Kennedy also gave evidence that the applicant called her on Tuesday, 17 March, in a distressed state, and told her the deceased was missing. He also told her he had gone through the deceased's things and that the deceased had been having an affair with Mr Mills for two years, complained about "how much money she had been spending", and that "she was spending his money, that she had lied to him on many occasions". He told Ms Kennedy "All her life that she's lied to him". She also said that he told her that he had spoken to the deceased on the Saturday night and the deceased had told him she was with Mr Mills and he had said "well don't you bring him back here", referring to Riverdale Court. 4. On Monday, 16 March the applicant went to the school where the deceased taught and spoke to the principal, Matthew Hankinson, apparently looking for the deceased. Mr Hankinson described him as slightly agitated and a bit nervous. He gave the following evidence of their interaction: "… he hasn't seen her this weekend. He double-checked that, look, she did go to the conference with me, you know, that wasn't a fib, and I said, "Look, no, no. We went to the conference. She came home Friday afternoon and then she was heading down to play touch football." He indicated that he knew about the touch football match and that he was concerned that Sharon may bring the group back to his - sorry, to their residence in Grafton. He was highly concerned that a person called Billy was going to come back to the house and he was quite adamant he didn't want Billy to go to the house because apparently they'd had a previous affair, stated by John. I was not aware of that. And then ascertained, "Look, you know, I don't want him in that house. Sharon hasn't paid a cent towards that house, so he shouldn't be there." 1. On the argument for manslaughter, the applicant had, at this time, killed his wife and disposed of her body. He spoke with the deceased's supervisor, a man it was not suggested he knew other than in that capacity. Given this context, the reference to the deceased's lack of financial contribution to the Grafton home suggests something of a fixation with his perceived right to the Grafton home. 2. On the Tuesday, 17 March, when it was apparent the deceased was missing, he told his son Joshua "your mother is having an affair with Billy Mills. I haven't seen her since Saturday". The applicant subsequently attended the police station and engaged in an interview. In his recorded interview with police the applicant was at pains to stress that with respect to the purchase of Riverdale Court, he had "paid every single cent, every single red cent of it". When he came out Joshua said he appeared to be in shock, he and Zac comforted him and he said "I bought your mother that house and all those clothes". 3. The above evidence is suggestive the applicant held a sense of entitlement with respect to the property of the marriage consistent with resentment over the prospect of it being divided pursuant to a separation. Killing the deceased was therefore advantageous in advancing his perceived claim. Of course, it must be acknowledged that killing the deceased would have been an extreme response to this problem. The applicant's animus base on this issue could also have led to a confrontation (consistent with the respondent's reliance on the evidence) but one which involved less than an intention to inflict serious bodily harm. Is the mental element for murder established beyond reasonable doubt? 1. While the inference that the applicant was responsible for the deceased's death is overwhelming, it is not possible to know how the deceased was killed. It does not, however, follow that no conclusion can be reached as to the applicant's mental state at the time of the killing. 2. A number of circumstances point to a conclusion that the applicant intended, at least, really serious injury. The various scenarios connected with planning, such as the parking of the ute in the garage, and an economic motive are, of course, consistent with an intention to kill. The best case for the applicant is an unplanned outburst of violence in which the deceased was killed with no intention to inflict really serious injury. In my view the injury to the applicant's hand (and the associated inference that there was no weapon used) provides the strongest support for such a possibility (noting that it is for the prosecution to exclude any such reasonable possibility, not for the applicant to establish it). Ultimately, however, even if it is accepted that it is reasonably possible death was caused by an unplanned assault, viewed in the context of all the evidence, I am satisfied that any such assault involved an intention to inflict, at least, really serious injury. 3. There was no evidence of any disturbance consistent with an argument on the night of the deceased's death. Nothing of this nature was heard by the neighbours. Nor was there any evidence that the applicant was intoxicated. Even if any assault was unplanned, these matters point away from an uncontrolled outbreak of violence. In these circumstances the possibility that the applicant struck the deceased with a blow sufficiently hard to break a bone in his hand suggests a level of force consistent with an intention to cause, at least, really serious injury. Further, if, for example, the deceased hit her head as a result of falling on a hard surface after such a blow or otherwise, death was unlikely to have been instant. For the reasons discussed above, not seeking assistance and then disposing of the body suggest a disregard for the deceased, and point away from an intention to do something less than inflict really serious injury. 4. Weighing all of the evidence, I am ultimately satisfied that the applicant acted with an intention to inflict, at the least, really serious injury. Given my view of the evidence it is unnecessary to return to the issue of whether any inference can or should be drawn in accordance with the principle in Weissensteiner. It follows that the verdict of the jury was not unreasonable. I would reject this ground. Conclusion 1. For the reasons given above, I am of the view that none of the grounds have been established and the appeal must be dismissed. ********** Amendments 09 August 2022 - [8], [10], [44], [63], [67], [70], [75], [76], [86], [90], [94], [95], [100], [103], [104], [112], [114], [120], [122], [125], [131], [134], [139], [142], [150], [158], [160] - minor typographical errors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2022