http://www.austlii.edu.au/au/cases/vic/VSCA/2013/128.html
CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one count of murder – Victim was the Applicant’s former wife – Victim disappeared in 1986 and body never found – Applicant’s soliloquies captured on listening devices as consciousness of guilt or implied admissions – Whether the prosecution led that evidence without a proper basis in circumstances where it disclaimed reliance on consciousness of guilt reasoning – Whether the prosecution proffered an argument in final address that relied on consciousness of guilt reasoning – Whether late change in prosecution case – Whether the trial judge failed to direct the jury as to what use they could make of the soliloquy evidence – Application for leave to appeal against conviction refused.
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60 There are two final matters upon which I should comment. First, in my view, the characterisation of the applicant’s ruminations as post-offence conduct evidencing consciousness of guilt is dubious. In my opinion certain of the applicant’s ruminations were capable of being viewed as direct evidence of his state of mind,[18] rather than as implied admissions. The directions given to the jury as to the use of the evidence, however – it being assumed that it went to consciousness of guilt – could not have caused any disadvantage to the applicant. Indeed, on one view, they may have been favourable.
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[18] See Evidence Act 2008 , s 66A. See also Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 302–4 (Wilson, Dawson and Toohey JJ); Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, 477–80 [116]–[126] (McHugh, Gummow and Hayne JJ).