R v FEDERICI [2005] NZCA 153 (16 June 2005)

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R v FEDERICI [2005] NZCA 153 (16 June 2005)

Last Updated: 29 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA394/04

THE QUEEN



v



JOHN FEDERICI

Hearing: 10 May 2005

Court: William Young, O'Regan and Robertson JJ

Counsel: G J Foley for Appellant
M D Downs for Crown

Judgment: 16 June 2005

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1]

The appellant, Mr Federici, was found guilty of the murder of his wife after a trial in the High Court at Auckland in August 1999. He appealed to this Court against his conviction. The appeal was dealt with on an ex parte basis and was dismissed on 3 February 2000. On 4 October 2004 Mr Federici applied to this Court for a rehearing of his appeal under s 14(2) of the Crimes (Criminal Appeals) Amendment Act 2001. Section 15 of that Act requires that a Judge of this Court make a decision as to whether a rehearing will be allowed, but that step was not taken in this case. However, Mr Federici was entitled as of right to a rehearing pursuant to the decision of this Court in R v Smith [2003] 3 NZLR 617. We have therefore dealt with this appeal as if it were a R v Smith rehearing.

Facts

[2]	Mr Federici and his wife were married in 1991 in Australia. They came to New Zealand with their two children in 1996. They lived with Mrs Federici’s mother in Auckland for some period. There were marital difficulties which resulted in separation in July 1998. Attempts at reconciliation were made, but tensions remained, in part caused by Mr Federici’s drinking.
[3]	According to Mr Federici’s account of events (in a video interview with the Police and at trial), he visited his wife at her home in Onehunga on 16 September 1998. There was an argument between them, which included Mrs Federici throwing clothes or coat hangers at him. He then started hitting her, and they ended up on the ground facing each other. He then squeezed the jaw or neck of Mrs Federici and she died.
[4]	After her death, Mr Federici, who had an interest in pathology and was studying bio-medicine at Auckland University, cut an arm off the body of his wife and severely cut at the neck of the body. The Crown’s case was that he had done this to conceal evidence of strangulation. Initially he placed the body in a glory box, but subsequently transferred it to a wheely bin, covering the body with rubbish and dirt. He then hired a van using his wife’s credit card and driver’s licence, loaded it with property, including some of his wife’s belongings, and also loaded the wheely bin containing his wife’s body. He then embarked on a journey around the North Island covering some 2,300 kilometres over a period of three days, taking his younger son with him.
[5]	The Crown’s case was that Mr Federici disposed of evidence of the murder including property belonging to his wife, the knife which he had used to dismember her body and the wheely bin containing her body. He then arranged for his son to be taken to his wife’s sister, and attempted to leave New Zealand on a flight to Brisbane. He was apprehended at Auckland airport.
[6]	When interviewed by the Police, Mr Federici denied knowing where his wife was and pretended that she was still alive. However, after talking to a priest, he eventually confessed to killing his wife. He also admitted to dismembering her body. He agreed to take the Police to the locations where he had disposed of evidence, which he did over the next day or so. The recovery of items of evidence during this process was recorded on video.
[7]	The principal defence at trial was lack of murderous intent. Mr Federici’s evidence at trial differed from what he had said in his video interview after he was first apprehended, and he claimed that he had not intended to kill or inflict serious injury to his wife.

Points on appeal

[8]	Mr Federici raised six points of appeal. These were:

(a) The failure of the trial Judge to leave the issue of provocation to the jury;
(b) Prosecutor misconduct;
(c) Improper admission of irrelevant and prejudicial evidence at the trial;
(d) Misdirection (or failure to direct) by the trial Judge in her summing up;
(e) The cumulative effect of these irregularities caused unfairness and an unbalanced summing up;
(f) General unfairness: the trial was, as a whole, unfair.

[9]	We deal with each of these in turn.

Ground 1: Provocation

[10]

On behalf of Mr Federici, Mr Foley argued that the trial Judge, Cartwright J, should have put the defence of provocation to the jury; this despite the fact that the defence at trial was lack of murderous intent and provocation was not raised during the trial at all. He said that there was sufficient evidence to constitute a "credible narrative" of provocation such that the Judge should have put the defence to the jury, even though it was not pursued by the defence at any stage.

[11]

The starting point is s 169 of the Crimes Act 1961, which provides that culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation. Section 169((2) defines provocation as follows:

Anything done or said may be provocation if –

(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and
(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.

[12]

Section 169(3) makes it clear that the issue as to whether there is any evidence of provocation is a question of law, and therefore for the Judge to decide. Once it has been established that there is evidence of provocation, the questions as to whether the provocation was sufficient in terms of s 169(2)(a) and whether it did in fact deprive the offender of the power of self-control in terms of s 169(2)(b) are questions of fact, and therefore for the jury.

[13]

The obligation of a trial Judge was well summarised by this Court in R v Erutoe [1990] 2 NZLR 28 at 33 as follows:

In exercising his particular responsibility under the section, the trial Judge has to consider whether the evidence is reasonably capable of leading a jury to find it reasonably possible that both aspects of the test are satisfied: R v Nepia [1983] NZLR 754, 756. As indeed in this case, provocation may be the only answer to the charge of murder; and so it is not likely to be taken away from the jury. An accused is entitled to put it forward so long as from the evidence as a whole there appears a credible narrative of events disclosing material that suggests provocation in law: R v Anderson [1965] NZLR 29, R v Taaka [1982] 2 NZLR 198.

[14]

Mr Foley argued that there was such a credible narrative in this case. That was strongly disputed by Crown counsel, Mr Downs. It is therefore necessary for us to consider the evidence which was before the Court to determine whether there was a credible narrative. In doing so we bear in mind the observation of Lord Steyn in R v Acott [1997] 1 All ER 706 at 713:

Where the line is to be drawn depends on a judgment involving logic and commonsense, the assessment of matters of degree and an intense focus on the circumstances of a particular case.

[15]

The only account of the events leading to the death of Mrs Federici were those given by Mr Federici in the Police interview (the videotapes of which were played at the trial) and in his evidence at trial. There was however, evidence from friends of, and the sister of, Mrs Federici about the state of the relationship between Mr and Mrs Federici in the weeks leading up to Mrs Federici’s death and, of course, there was medical evidence as to the injuries suffered by Mrs Federici and the evidence of what Mr Federici did after his wife’s death.

[16]

Mr Foley relied on the following:

(a) Evidence from work colleagues that Mrs Federici had told them there were problems in her relationship with Mr Federici, sometimes involving physical fights. Mr Federici’s drinking was said to be a factor in this. There was evidence to similar effect from Mrs Federici’s sister and from a friend of Mrs Federici. Mrs Federici had also confided in a volunteer at the Citizens Advice Bureau that there was violence in the relationship;
(b) The evidence from the pathologist relating to the injuries suffered by Mrs Federici. In general the evidence was that strangulation was the likely cause of death, as illustrated by bruising of the head and neck and petechial haemorrhaging in the eyes and mouth of Mrs Federici, and the dislocation of the hyoid bone. The pathologist, Dr Cluroe, said that it would probably take 15-30 seconds of applied pressure before the petechial haemorrhaging would appear. In cross- examination, Dr Cluroe accepted that if the application of pressure to the neck had led to vasal vagal inhibition, then death could have been almost instantaneous (less than 15 seconds). However she said she had never encountered vasal vagal inhibition as the sole cause of death, and said that she did not believe it could have been the sole cause of death in the present case.
(c) Mr Federici’s description of events in the videotape where he said there was an argument and Mrs Federici was throwing things, after which he hit her, they both ended up on the floor facing each other, Mrs Federici said "kill me", he squeezed her neck, she turned blue, and then died. He described his own state as "some sort of...maniac state or something";
(d) Mr Federici’s evidence at trial where he described his wife throwing coathangers or clothes at him and that he started hitting her. He said the next thing he heard was the words "kill me" and they were lying facing each other. He said he squeezed her jaw. He said "there was no reality to what happened there" but that he could not remember what he was thinking;
(e) Evidence that Mrs Federici was having an affair. There was evidence to that effect from a work colleague of Mrs Federici, but it was unclear whether Mr Federici was aware of this, and he did not at any time indicate that this was a reason for his attack on her which led to her death. He made no reference to an affair in his evidence at trial, but there was some reference to it in his videotaped interview. The interviewer asked him repeatedly as to whether his wife was having an affair to which he answered "I don’t know". When pressed he said that he had wanted to read his wife’s diary to find out what was going on, and when asked if he had his suspicions he answered "well, yeah, I suppose". However he later confirmed that he did not know whether his wife was having an affair, but that he thought she may be, though he had never seen another man with her;
(f) The events after the death, which he said illustrated the panic which the events had induced in Mr Federici.

[17]	Mr Foley said that in combination these matters amounted to a credible narrative of provocation. In essence, he said there had been a build up of tension between Mr Federici and his wife, there had been arguments which had descended into violence, Mr Federici believed, possibly correctly, that his wife was seeing another man and that these factors accumulated together with the argument and fight which ultimately resulted in Mrs Federici’s death. He said the provoking conduct may have been the fact that Mrs Federici threw clothes at Mr Federici or the words "kill me" or a combination of each of them. He said the extreme nature of Mr Federici’s reaction to the killing supported the proposition that he had lost his self control.
[18]	Mr Downs pointed out, correctly, that Mr Federici never claimed to have acted from a loss of self control, nor did he claim to have been provoked either during his interview with the Police or at trial. Mr Downs said that the evidence as to the injuries suffered by Mrs Federici in the course of her death were evidence consistent with murderous intent, but not with provocation. He disputed the contention that Mr Federici believed that his wife was seeing another man, and had lost control as a consequence of that. Overall, he said that the evidence established that there was a deteriorating relationship between the couple, which was characterised by arguments and aggressive behaviour by Mr Federici, fuelled by alcohol. He said this was not sufficient to establish provocation.
[19]	We reject the contention that there was a credible narrative of provocation in the present case. There is no evidential foundation for the proposition that Mr Federici knew his wife was having an affair and even less so that this is what led to his loss of self control. Mr Foley speculated that the loss of self control could have been caused by Mrs Federici throwing clothes at Mr Federici, or by the fact that she said "kill me". Both contentions are pure speculation. Mr Federici was the only person who witnesses his wife’s death. He gave his version of events in the videotaped interview and at trial, and did not make reference to either of these matters as having provoked him to act the way he did.
[20]	Even if the contention that Mr Federici lost self control because his wife threw clothes at him or because she said "kill me" were accepted, that could in law amount to provocation only if such conduct was sufficient to deprive a person having the power of self-control of an ordinary person (but otherwise with Mr Federici’s characteristics) of the power of self control. No person having ordinary powers of self control would strangle a woman because she throws clothes at him or says "kill me". Mr Federici’s defence of lack of murderous intent at trial was based on his account which necessarily down-played evidence indicative of such intent (including anything said or done by his wife which may have enraged him to the point of forming such intent, which may also have founded a provocation argument). In those circumstances, it is not surprising that that account did not provide a good basis for the provocation argument pursued on appeal.
[21]	There was no credible narrative of provocation in this case. Accordingly, there was no proper basis on which provocation could have been put to the jury. Trial counsel for the Crown and the defence were right not to have raised the matter with the trial Judge. Cartwright J was right not to have left the defence to the jury. This ground of appeal fails.

Ground 2: Conduct of prosecutor

[22]

Mr Foley argued that the prosecutors at the trial failed to present the case dispassionately and scrupulously, as required by the New Zealand Law Society Rules of Professional Conduct for Barristers and Solicitors (r 9.01). As this Court said in R v Roulston [1976] 2 NZLR 644 at 654, "prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused".

[23]

Mr Foley said that the conduct of the prosecutors was unfair in three respects. These were:

(a) Unnecessarily passing a knife to and amongst the jury;
(b) Presenting prejudicial and peripherally relevant material that blackened Mr Federici’s character;
(c) Criticising Mr Federici’s evidence at trial as being tailored by way of the advantage of pre-trial disclosure.

[24]	The admission of prejudicial material is a separate ground of appeal, and we will deal with it in that context. We comment only briefly on the other two complaints.

Knife

[25]	Mr Foley said that the knife used in the partial dismemberment of the body of Mrs Federici was, at the prosecutor’s request, passed among the jury. He said this was unnecessary and inflamed jurors’ minds against Mr Federici. He emphasised that the knife was not the murder weapon.
[26]	Mr Downs said that the knife was an important exhibit. He said it was directly relevant to the issue of Mr Federici’s intention when he killed Mrs Federici. He said this was demonstrated by the fact that Mr Federici disposed of the knife several hundred kilometres from the scene of the killing. He said the jury could have inspected it as an exhibit at any time that there was no rule preventing the jury from doing so earlier than its retirement.
[27]	It seems to us that the Crown case would have lost nothing if a photograph of the knife had been used as the primary evidence. Passing the knife among the jury could have been avoided. But the knife had evidential value and was properly an exhibit, and all exhibits are available for inspection by the jury. In those circumstances we do not think that the passing of the knife among the jury can properly be described as misconduct by prosecuting counsel.

Tailoring of evidence

[28]	Mr Foley’s complaint was that the prosecutor had criticised the appellant’s evidence at trial as being tailored by way of the advantage of pre-trial disclosure. We cannot see anything unfair in that. The prosecutor clearly intended to state that proposition in his address to the jury, and he was correct to put it to Mr Federici so that Mr Federici had a chance to answer the criticism.
[29]	The exchange about which Mr Foley complained related to Mr Federici’s change of position from the time of his video statement (where he acknowledged squeezing the neck of Mrs Federici) to the trial (where he said he squeezed her jaw). The prosecutor said this was because Mr Federici had seen the pathologist’s report, which had been disclosed by the Crown, and was trying to provide a version of events which was most favourable to his case.
[30]	There were other similar instances. The prosecutor suggested that Mr Federici had retreated from his acknowledgement in his video statement that his wife had said "kill me" and he had done so because he had been told after the time of the video interview what the definition of murder was. He also suggested that Mr Federici had changed his position about the nature of the blows he had struck to Mrs Federici because of the evidence of three blunt trauma injuries to her scalp, which had been revealed in the pathologist’s report disclosed to Mr Federici.
[31]	In each case Mr Federici denied the accusations. We see no unfairness in those matters being put to him.

Ground 3: Admission of irrelevant and prejudicial material

[32]	Mr Foley said that much irrelevant and prejudicial material had been placed before the jury, and that this had lead to an unfair trial. He said this raised issues of unfairness by the prosecutor and also criticised Cartwright J for not having intervened. He did not criticise trial counsel for not having objected to these matters.
[33]	There were a number of matters raised under this head. These were:

(a) Photographs;
(b) Previous bad conduct;
(c) Arguments with Mr Federici’s mother in law;
(d) Evidence of breach of a protection order in relation to the mother in law;
(e) Theft of a pathology text book;
(f) Borrowing a pathology lab sample;
(g) Evidence relating to a mortuary video.

[34]	Item (b) encapsulates items (c) – (g) inclusive, and we will deal with all those matters together. Before doing so, we deal with the photographs.

Photographs

[35]	Mr Foley said that the photograph booklet which had been produced by the Police and was provided to the jury at the commencement of the trial contained a number of photographs which ought not to have been placed before the jury.
[36]	Despite Mr Downs’ submissions to the contrary, we agree with Mr Foley that there were aspects of the photograph booklet which were unsatisfactory. Mr Downs said defence counsel at trial had not objected to the photographs, and a s 344A application before trial did not proceed because counsel had agreed on the removal of some photographs from the booklet. He also said at least some of the photographs of the victim’s body were referred to by the pathologist when she gave her evidence.
[37]	The first page of the booklet contained a glamorous photograph of Mrs Federici which was framed in the style of a tribute. It appeared to have no evidential value. The following page was a "mug shot" of Mr Federici. The contrast was obvious. Neither appeared to be required for evidential purposes. The last photograph in the book was a photograph of a tricycle of the son of Mr and Mrs Federici who travelled with Mr Federici after the killing. The picture of the bicycle is poignant but apparently without evidential value.
[38]	There were a large number of photographs of Mrs Federici’s body which were particularly horrific, and would have been disturbing to jurors. By no means all of these photographs were referred to by the pathologist, and their appearance in the booklet appeared to be more than was necessary for evidential purposes. We realise that it will not always be apparent to a prosecutor what matters will be called into question in the course of the trial, and that the production of photograph booklets is undertaken on that basis. But we think that there should have been greater restraint in the preparation of the booklet in this case.
[39]	Another strange aspect of the photograph booklet was the "acknowledgements" section at the end of the booklet, which set out acknowledgements of the Police photographers who had taken the photographs and the officers who had been involved in the compilation of the photograph book. There did not seem to be any evidential value in this information either.
[40]	Although we think that there is room for criticism of the photograph booklet, we do not think that any miscarriage of justice resulted. This was a horrific killing, and it was inevitable that the evidence which had to be placed before the jury would also be horrific, even if greater restraint had been shown in the preparation of the booklet.

Evidence of previous bad conduct

[41]	Mr Foley said it was wrong for the Crown to have introduced evidence relating to past events which reflected badly on Mr Federici. This included evidence that there had been arguments between Mr Federici and his mother in law, that Mr Federici’s mother in law had a protection order against him, that he had been arrested for breach of that order and sprayed with pepper spray, that Mrs Federici had been fearful for herself and her children because of Mr Federici’s conduct, that Mr Federici had breached bail, that Mr Federici had stolen a pathology text book, that he had borrowed a pathology lab sample and that he had suggested that a witness watch with him a video of the dissection of a human body, which he had undertaken as part of a University course in Australia.
[42]	Mr Downs said that none of this material had been objected to by Mr Federici’s trial counsel, who was an experienced counsel. He noted that another reason that the s 344A application had been vacated prior to the trial was because agreement had been reached between Crown and the defence, and as a result four intended Crown witnesses did not give evidence.
[43]	Mr Downs said the aggressive behaviour shown by Mr Federici towards his mother in law and his wife was intrinsically connected to the deterioration in the relationship between him and his wife (he and his wife lived with the mother in law for some time, during which these incidents occurred). He said that evidence of violence between Mr Federici and his wife was designed to rebut the claim made by Mr Federici in his video interview that the incident which led to Mrs Federici’s death had begun with "a cat fight" with "just a few punches and slaps and stuff". He said it also illustrated that Mr Federici was unwelcome at Mrs Federici’s home on the night of the killing.
[44]	Mr Downs said that evidence relating to Mr Federici’s interest in, and knowledge of, pathology was relevant because the Crown said that he had mutilated the throat of Mrs Federici after her death in order to conceal evidence of strangulation. He said that Mr Federici had ultimately acknowledged that he must have broken Mrs Federici’s hyoid bone by squeezing her so hard, and that his knowledge of pathology was relevant to the Crown contention that this was an accurate description of what had happened at the time of Mrs Federici’s death.
[45]	While we think some of the evidence about which Mr Foley complains was marginal (such as the stealing of the pathology text book and a Police observation that Mr Federici was hostile to the Police), we accept Mr Downs’ submission that for the most part the evidence was relevant, for the reasons he gave. In our view these matters were relevant to the Crown case as to the deterioration of the relationship between Mr and Mrs Federici in the period leading up to Mrs Federici’s death. Mr Federici himself referred to the difficulties he had with his mother in law and the existence of a protection order in his trial evidence.

Ground 4: Misdirection by trial Judge

[46]	The fourth ground of appeal is that the trial Judge did not adequately put the defence case to the jury, particularly in relation to:

(a) The challenge to the evidence on strangulation;
(b) The medical evidence;
(c) The use to which evidence of flight could be used.

Strangulation/Medical evidence

[47]	Mr Foley said that the Judge had said in her summing up that the pathologist had expressed the opinion that the cause of death was manual strangulation and that no other viable cause of death had been suggested in the evidence. He said there were repeated references to strangulation. He said this was inaccurate, because the Judge did not refer to the possibility that vasal vagal inhibition was a significant possibility, or that there could have been a mix of causes of Mrs Federici’s death.
[48]	Mr Foley relied on the evidence given by the pathologist in cross-examination that vasal vagal inhibition could not be ruled out as a factor, and that if it was the cause of death then death could have occurred in less than 15 seconds. If death was caused by strangulation, the pathologist thought it would have taken 15-30 seconds.
[49]	However, that evidence was then qualified by what the pathologist said in re-examination. She said that she had never encountered a death where vasal vagal inhibition was the sole cause of death, and expressed the opinion that it could not have been the sole cause of death in the present case. She then confirmed that the petechial haemorrhages in the eyes and mouth of the victim, which must have been formed while the victim was still alive, suggested that Mrs Federici had survived during the attack for at least 15 seconds.
[50]	In our view, therefore, the evidence provided a proper basis for the conclusion that death resulted from a process of manual strangulation which lasted 15 seconds or more. The Judge could not properly direct the jury otherwise. To the extent that the defence case relied on the possibility of death by vasal vagal inhibition, it had no proper evidential foundation. The defence did not call a pathologist to challenge the evidence of Dr Cluroe, and, when it is read in its entirety, that evidence was that manual strangulation was the cause of death.
[51]	In her summing up the Judge recorded that "the accused does not dispute the cause of death, nor does he dispute that it was his actions that killed his wife". Mr Foley said that this was a simplistic and wrong analysis. If that were so, and if it were inconsistent with counsel’s closing submission to the jury, it could be expected that Mr Federici’s trial counsel would have raised the matter with the trial Judge at the time. He did not.

Evidence of flight

[52]	In her summing up, Cartwright J summarised the Crown’s case that Mr Federici had the necessary murderous intent to found a verdict of murder rather than manslaughter by referring to the categories of evidence on which the Crown relied. In the course of that analysis she said:

The third category is the accused’s actions before and after his wife’s death as recounted to you in the evidence. Were those acts of taking her into a remote area of the countryside with the stated purpose of burying her, his efforts to hide what he had done and his attempts to leave New Zealand those of a person who lacked the necessary murderous intent. Was he simply panicking as he told you, or was his panic directed more to hiding what he had done.

[53]	Later, in the course of summarising the defence case, she said:

Bear in mind the submission of the defence that it is a natural human reaction to attempt to hide or to minimise illegal acts.

[54]	Mr Foley said that the Judge’s directions on what he called the evidence of flight were inadequate, because she failed to specifically warn the jury against using evidence of flight to jump to a conclusion of guilt.
[55]	For the Crown, Mr Downs referred us to Australian authorities which suggest that, where there is evidence of flight, the trial Judge should give a direction similar to the direction normally given in relation to lies. However, Mr Downs suggested that it was not appropriate to follow that approach in New Zealand.
[56]	In R v Cook [2004] NSW CCA 52 12 March 2004, the New South Wales Court of Appeal considered an appeal in which it was argued that evidence of flight should not have been admitted and, in the alternative, that the Judge ought to have given directions to the jury about the use to which such evidence could be put.
[57]	In that case, there was evidence of flight by the appellant on two separate occasions when the Police tried to apprehend him. In the circumstances of the case it was determined that the evidence of flight was highly prejudicial (because the explanation which the appellant could give for it was that he was at risk of being apprehended for earlier offending which would have meant revealing that earlier offending to the jury). On the other hand its probative value was diminished by the fact that the appellant’s flight was just as likely to be attributable to the other offending as to the alleged offending for which he was on trial. The Court said that the prejudicial effect of the evidence outweighed its probative value and ruled that the evidence ought not to have been admitted.
[58]	However it went on to consider whether a direction should have been given to the jury if the evidence were admitted, and said at [50]:

[50] Where evidence of flight is relied upon as evidence of a consciousness of guilt, the principles of law applicable to directions which must be given to the jury are, in my view, identical to those which govern the directions to be given to a jury where lies are relied upon as such evidence. Those principles are stated in [Edwards v R [1993] HCA 63; (1993) 178 CLR 193, Zoneff v R (2000) 200 CLR 234, and R v Heyde (1990) 20 NSWLR 234]. The conventional direction in relation to lies drawn from those, and other cases, requires a degree of adaptation in order to be accommodated to evidence of flight relied upon by the Crown for the same purpose. In particular, it is necessary, in my opinion to draw attention to the circumstance that an accused person may behave in a way suggestive of a recognition of guilt for reasons other than such recognition of guilt – for example, fear of being unjustly accused. It is also necessary to point out to the jury that the consciousness must be a consciousness of guilt of the specific offence charged, and not, for example of some other offence or some other discreditable conduct. The flight (or lie) may only be used as evidence of a consciousness of guilt of the offence charged where the jury is satisfied that it points unequivocally to consciousness of guilt of that offence and not some other offence or discreditable conduct.

[59]	The reference to reliance on lies as evidence of consciousness of guilt reflects a difference in the Australian position relating to evidence of lies from that in New Zealand. In New Zealand, lies may be used as evidence of guilt "when a lie is more consistent with guilt than with innocence": R v Toia [1982] 1 NZLR 555 at 559. This is a less exacting test than the "consciousness of guilt" test in Australia.
[60]	In R v Burrows [2003] VSCA 130 the Court of Appeal of Victoria dismissed an appeal against a murder conviction, where one of the grounds of appeal was that the trial Judge did not direct the jury that the appellant’s post-offence conduct was possibly consistent with his having committed manslaughter, rather than murder. The trial Judge had said the prosecution relied on evidence of flight and of disposal of a gun as proof of guilt of murder. He told the jury they had to be satisfied that there was no other explanation consistent with innocence for the flight and the disposal, such as panic, fear and the like. The Court of Appeal said it was not necessary to refer to the fact that the flight and the disposal were possibly consistent with manslaughter.
[61]	The Australian cases follow similar authorities in Canada: R v White (1998) 125 CCC (3d) 385 and the cases referred to in that decision.
[62]	We think there may be cases where it would be appropriate for a trial Judge to follow the approach outlined in R v Cook, as cited in [56] above. But we do not think a direction of that kind was required in this case. There was no question that Mr Federici’s post-offence conduct could be attributable to his having committed an unrelated offence, as was the case in R v Cook. His conduct may have reflected panic, but the Judge dealt with that possibility in her summing up. It may be that his actions were consistent with both manslaughter and murder, but even on the strict Australian approach, it was not necessary to draw that distinction: R v Burrows.
[63]	It has to be recognised that the post-offence conduct in this case was not just a panicked fleeing of the scene, or an attempt to escape from approaching Police officers. It was a sustained course of conduct over a period of days involving the partial dismemberment of the victim’s body, followed by an ongoing episode which led to the disposal of the body and the concealing of evidence in remote locations, and an attempt to flee the jurisdiction at the end of that episode.
[64]	In terms of the Toia test, Mr Federici’s post-offence conduct was more consistent with the Crown’s contention that he had murdered his wife, than with his account of an unintended killing. In those circumstances, the Judge could have directed the jury to the effect that the evidence could be used to bolster the Crown case, subject to a warning similar to that which would be given in a situation where lies were relied on to bolster the Crown case. Overall, therefore, the fact that there was no direction about the relevance of post-offence conduct assisted, rather than harmed, the defence case, because such a direction would have specified how the evidence could have been used against him. The Judge did, however, warn the jury about the possibility of panic, albeit in the context of the summary of the defence case.
[65]	We are satisfied there was no material misdirection by the trial Judge. Accordingly this ground of appeal also fails.

Ground 5: Cumulative effect

[66]	Mr Foley accepted that some of the matters raised as grounds of appeal were not sufficient, in themselves, to lead to a miscarriage of justice. But he asked us to consider them cumulatively. In view of our findings on the individual grounds of appeal, we do not need to consider that proposition.

Ground 6: General unfairness

[67]	We reject Mr Foley’s contention that the trial as a whole was unfair.

Result

[68]	We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington