Court of Appeal (Vic)|2013-02-25|Before: Maxwell P, Weinberg JA, Priest JA

Andelman v The Queen [2013] VSCA 25 (25 February 2013)

DPP v Andelman (Unreported, County Court of Victoria, Judge Douglas, 15 November 2011)

CRIMINAL LAW - Appeal against conviction - Application of Criminal Procedure Act 2009 s 276(1) - Whether substantial miscarriage of justice in the appellant's trial as a result of error or irregularity - Strong Crown case - Serious departure from the prescribed processes for trial - Strength of Crown case not by itself a determinant factor in assessing whether miscarriage of justice occurred - Appeal allowed - Retrial ordered - Baini v The Queen (2012) 293 ALR 472 applied.

1 On 17 October 2011, the appellant, Josef Andelman, was arraigned in the County Court at Melbourne upon an indictment containing 85 charges of theft. He pleaded not guilty. He represented himself at his trial. On 4 November 2011, he was convicted on each charge.

2 He was subsequently sentenced to four years' imprisonment with a non-parole period of two years. By leave, he now appeals against his conviction on the following grounds:

1. A substantial miscarriage of justice was occasioned by:

(a) the prosecutor's having adduced from alleged co-offenders TATNELL and KALIA the fact that each had pleaded guilty to and been sentenced on charges of theft in circumstances where some of those thefts had been allegedly committed with the Applicant; and

(b) the trial judge's failure, properly or at all, to direct the jury:

(i) against their impermissibly using TATNELL and KALIA's pleas of guilty against the Applicant; and

(ii) on the dangers of relying upon the evidence of alleged co-offenders TATNELL and KALIA in accordance either with ss 165(1)(d), (2) and (5) of the Evidence Act 2008, or with the common law.

A substantial miscarriage of justice was occasioned by the trial judge's having directed the jury, in the circumstances of the Applicant's trial, that they could use the evidence led against the Applicant as tendency evidence.
A substantial miscarriage of justice was occasioned by the Applicant's having not been represented at trial. In particular, the trial miscarried because the Applicant, unrepresented:

...

(b) was ill-equipped to, and did not, take exceptions to the judge's charge in circumstances where the judge fell into error.

3 The appellant was, between July 2007 and October 2008, an employee of National Protective Services Pty Ltd ('NPS'). That company was contracted by Melbourne City Council to arrange for the collection of money from parking meters throughout the City, to count the money, and to deposit it into a Council bank account.

4 Employees of NPS worked in pairs to carry out that task. They were instructed to remove the full money boxes contained within the parking meters at the end of the day, and to replace them with empty boxes. Each meter and its coin box had a separate key. The employees were only given the keys to the coin boxes of the meters they were instructed to empty on that shift.

5 The Crown's case was that the appellant, and several of his co-workers, stole money from parking meters. One method said to have been used was simply to take the loose coins which had not fallen into the coin box. Another method, which was demonstrated by the appellant himself during the trial, was to remove the coin boxes from the parking machines in an open state with a screwdriver.

6 The 85 counts set out on the indictment all involve thefts from 'ReinoMX' parking meters. There was evidence that when a motorist inserts coins into a ReinoMX parking meter, that sum is registered on a computer system known as 'ReinoNet'. The evidence was that tests were carried out to ensure the accuracy of that system throughout the period covered by the indictment.

7 In 2008, City of Melbourne employees became aware that there was a discrepancy between the amount of coins counted by NPS and the amount shown to have been collected by ReinoNet. An internal investigation revealed that the most likely explanation for the discrepancy was that collectors had been stealing coins from the meters. The police then became involved.

8 Three other collectors gave evidence at the appellant's trial. Two of these collectors, Charnjit Kalia and Rodney Tatnell, had previously pleaded guilty and been sentenced for thefts from parking meters. Kalia was sentenced to 18 months' imprisonment, fully suspended for 24 months. He was co-operative with police, and undertook to give evidence against his co-offenders, including the appellant. It was alleged that he had received $40,000 from his offending.

9 Tatnell was sentenced to two years' imprisonment with a non-parole period of one year. He, too, undertook to give evidence against his co-offenders. It was alleged that his thefts totalled $288,440.30.

10 Both Kalia and Tatnell gave evidence that, while on shifts with the appellant, they stole coins from parking meters. They added that the appellant would deposit the coins into his own bank account, and then give them their share of the money at a later stage.

11 The third employee of NPS to give evidence was Ms Cigdem Sezgin. She said that on one occasion when working on a shift with the appellant, he asked her whether she would 'take'. She said no to that suggestion, after which the appellant became irritated with her as she was not prepared to join him in stealing coins.

12 It was alleged that the appellant had stolen a total of $148,258.25 (the sum of the 85 counts of theft). Each count on the indictment relates to the sum of money which is the difference between the ReinoNet data and the total sum of the coins counted by NPS and subsequently deposited into the Council's bank account.

13 In relation to ground 1, the appellant noted that the prosecutor adduced evidence from Kalia and Tatnell that they had each pleaded guilty to offences that were of a like nature to those alleged against the appellant. He submitted that the trial judge was therefore bound to direct the jury that they were not to use Kalia and Tatnell's pleas of guilty against him.

14 It was also submitted that the prosecutor was 'duty-bound' to adduce from Kalia and Tatnell not only that they had pleaded guilty, but also that they had each gained from their undertaking to give evidence against the appellant. Further, it was submitted that the judge was obliged to warn the jury against the dangers of relying upon the evidence of Kalia and Tatnell, and that in the circumstance of the appellant being unrepresented, it fell to the prosecutor to remind the judge of the need to do so.

15 An understanding of ground 2 requires some background knowledge of the way in which matters developed through the trial. The ground relates to evidence of coin deposits led by the informant said to be contemporaneous with the alleged thefts, and to evidence of further coin deposits led by the accused on dates unconnected to any charge on the indictment. In response to Mr Andelman's evidence of coin deposits, the Crown was permitted to lead evidence of certain uncharged acts of theft said to have been committed by the appellant. Such evidence was led from Kalia and Tatnell. These uncharged acts were relied upon by the prosecution to explain the deposits of coins into the appellant's bank account which were not obviously referable to any counts on the indictment. Following this evidence, the judge instructed the jury as follows.

The prosecution relies on the evidence of other thefts committed allegedly by the accused to provide a context for the other deposits of coins into bank accounts to rebut the accused's case, that the coin deposits made in bank accounts led in relation to specific charges on the indictment are in the context of many occasions making coin deposits from legitimate sources, which is what he accused says. So you cannot conclude the coin deposits are from thefts and the prosecution is leading evidence of the uncharged acts of theft, to say, well, there was other dishonest activity going on in relation to coin deposits.[1]

16 No objection was made to this instruction at trial, and no issue concerning it was raised on appeal.

17 However, the appellant's written submissions asserted that, in her charge, the trial judge went further and introduced both tendency and coincidence reasoning, despite the fact that the prosecutor had not served a tendency notice nor a coincidence notice. This is said to have caused the trial to miscarry.

18 The appellant submitted that the 'gravamen' of ground 3 (on which partial leave was granted) lay in the appellant's inability at trial 'to take objections and exceptions when the prosecutor and judge fell into error; or short, despite their best efforts, of according the appellant the assistance necessary to ensure that he receive a fair trial'.

19 It was submitted that, as a consequence of these errors, a substantial miscarriage of justice had occurred. It was next submitted that the High Court's decision in Baini v The Queen[2] required this Court to determine whether the verdict was 'inevitable' in considering whether no substantial miscarriage of justice in fact occurred. That term, the appellant submitted, required a 'very high threshold' to be overcome if a conviction affected by error in the trial were to be sustained.

20 Finally, the appellant submitted that the Baini analysis is to be conducted by reference to the effect of the errors in the trial upon the jury in question, rather than any hypothetical jury. He submitted that a very different trial would have resulted had the evidence of Tatnell and Kalia been subject to appropriate warnings (or excluded), and had the Crown complied with its obligation to give tendency or coincidence notices. It was therefore too fraught an exercise for this Court to attempt to determine whether the convictions were nevertheless 'inevitable'.

21 In its written submissions the Crown submitted that none of the appellant's grounds of appeal had been made out.

22 As to ground 1, the Crown did not assert that the trial judge had, in fact, warned the jury as to the need to take care in assessing the evidence of Kalia and Tatnell. Rather, it was submitted that there was no need for an unreliable evidence warning under s 165(1)(d) of the Evidence Act 2008 in the present case because the evidence of those witnesses did no more than 'identify the [appellant] as the person who stole the money that was the subject of the charges'. It just so happened that they stole money along with him.

23 It was further submitted that in the context of the trial, and owing to the substantial independent evidence that the appellant was stealing money, the trial judge would have been unlikely to give a s 165 warning even if her Honour had been asked to do so. On the hearing of the appeal, however, counsel for the Crown indicated that he took no issue with the appellant's contention that the potential applicability of s 165 ought to have been at least drawn to the appellant's attention at trial.

24 In relation to ground 2, the Crown submitted that the trial judge was correct to admit the evidence of uncharged acts. It was admissible for the purpose of rebutting the suggestions made by the appellant that the coins he had deposited had been honestly obtained.

25 The Crown also noted that the trial judge referred to the appellant's overall 'pattern of behaviour' in the following passage of her charge:

It was put to you very clearly the basis of each of the charges on the indictment, which is reference to Exhibit P8, the discrepancy chart, and I will not go over that. The prosecution say overall it is a pattern of behaviour and that the only explanation for the large deposits of coins that is reasonable is the fact that the accused stole them in the way alleged.[3]

26 It was said that this passage followed from the prosecutor's invocation of coincidence reasoning in the following passage of his closing address:

Of course, this evidence - this coin deposit evidence is circumstantial evidence. That's what we call it. And Her Honour will give you proper directions on how you can use that evidence. But I suggest to you that it is powerful corroboration of the allegations in this case. Or, is it just an incredible coincidence, that Mr Andelman after working on a shift, during which a large quantity of coins have gone missing - deposits a large quantity of coins in the bank that very day or the day after. A coincidence, it happens 45 times - I suggest to you that that's not the coincidence that happens.[4]

27 Finally, the Crown submitted that ground 3(b) did not amount to a ground of appeal in itself, independent of other error. It submitted that the only possible relevance of the fact that the accused had been unrepresented at his trial was that this Court could be 'more lenient in applying the rule that an objection to the charge which was not taken as an exception precludes raising that matter now'.

28 On the hearing of the appeal, counsel for the Crown largely confined his submissions to the question whether there had been a 'substantial miscarriage of justice'. He invited the Court to consider whether, if Tatnell and Kalia's evidence had been entirely excluded (which, he submitted, equated to the best possible result for the appellant had he had the benefit of a warning in relation to their evidence), his conviction would nevertheless have been 'inevitable'.[5] That was so, he submitted, at the very least in relation to the 45 counts which were the subject of detailed evidence of coin deposits led by the informant.

29 Although the substance of the Crown's argument on the appeal went to the application of s 276(1) of the Criminal Procedure Act 2009 to this case, it is first necessary to examine the nature of the errors that were made in this trial. That is because the nature of the errors made fundamentally affects the question whether there has been a substantial miscarriage of justice.[6]

Admissibility of evidence of co-offenders' pleas of guilty

30 Ground 1(a) complains that the prosecutor impermissibly adduced evidence from Kalia and Tatnell regarding their pleas of guilty, and that, in the particular circumstances of this case, this, of itself, led to a miscarriage of justice. It is critical to this ground to set out at some length precisely what evidence these witnesses gave regarding this matter.

31 In relation to Kalia, the prosecutor first established that he had been employed by NPS as a security guard, and that his responsibilities included collecting coin boxes from meters. The prosecutor also led evidence that Kalia had, while on shifts with the appellant, stolen coins. That is evident from the following passages of the transcript:

MR FITZGERALD: Did you get any of the coins from the boxes?---When?

While you were working with Mr Andelman?---Yes.

How often would you do that?---Because I occasionally work with him, so it's hard to say. I don't recall.

...

After having worked with Mr Andelman, did you ever receive any money from him?---If he has taken the coins home, then he just gave me money on next time we working together.

...

MR FITZGERALD: Can you just repeat that?---Yeah. When I'm working with Andelman again, he gives me money, whatever he has taken the night before - I mean a part of that.

In what form would he give you that money?---In notes.

How much on a given night would he give you?---It depended. Anywhere between 200, 300 up to six, seven hundred dollars.

Why is it that he would give you that money?---Because he has taken the coins and then I think he gave me money as my part, what I should get out of that.[7]

32 The prosecutor then adduced evidence of Kalia's having pleaded guilty to various charges arising out of his role in the theft of coins as follows:

MR FITZGERALD: Indeed, Mr Kalia, you were arrested in relation to this matter?---Yes.

You pleaded guilty to some charges that related to it. Is that right?---Yes, I did.

You were sentenced?---Yes.

You received a suspended sentence?---Yes.

Of 18 months suspended for two years. Is that right?---Yes.

Was that in August 2010?---Yes.[8]

33 Tatnell too gave evidence that his role at NPS had been to collect coins, and that he had worked on shifts with the appellant. The prosecutor led evidence from him that he had stolen coins from parking meters while working with the appellant:

MR FITZGERALD: You've mentioned Josef. Can you recall working with him? Was there ever any conversation about the collection run and anything like that?---Yeah, one time he approached me and asked if I wanted to do some money and I said, 'Yes, no problem'.

Sorry, what did he ask you?---If he wanted doing some money.

What did you take him to mean?---He - end of our shift and that, we used to go to the bank and he gave me cash and that and he kept the coins.

...

What would he do?---As I said before, he changed 'em, giving the money bags to his wife. They'd take it home. At the end of the shift we used to go to the bank and he give me cash.

...

Are you aware of how many occasions you worked with Mr Andelman and stole?---Not necessarily, but as to the shift I just told you he'd normally give me cash and that's it. He does what he has to do.[9]

34 The prosecutor then raised the issue of Tatnell's convictions on theft charges arising from the incidents described in his evidence:

MR FITZGERALD: You yourself pleaded guilty to the ?---Yes, I did.

- - - charges of theft. Is that right?---Yes, correct.

You were sentenced in the County Court for those charges. Is that right?---That's correct.

You received a two-year term of imprisonment. Is that right?---That's right.

35 It is important to note that at no point did the prosecutor adduce from Kalia and Tatnell that they had received discounts on their sentences for their co-operation, or that they stood to be resentenced on appeal by the Crown to this Court if they did not swear up to their statements.[10]

36 There is a line of authority which casts doubt as to whether evidence that Kalia and Tatnell had earlier pleaded guilty to having stolen coins from parking meters throughout the city of Melbourne, in company with the appellant, ought to have been received in the appellant's trial.

37 In R v Ristic,[11] the applicant had been charged with three counts of burglary and three alternative counts of handling. After a trial, he was found not guilty on the burglary counts but convicted on the three handling counts. Evidence was led that two others who were implicated on the evidence had pleaded guilty to handling and been convicted. One of the grounds of appeal before the Court of Criminal Appeal asserted that such evidence was inadmissible.

38 Starke J, with whom Murphy and Marks JJ agreed, drew a distinction between the fact that the accomplices had been convicted and the fact of their having pleaded guilty. The first, in the particular circumstances of the case, was properly before the jury. As to the second, his Honour said:

On the face of it seems to me clear that the fact led by the Crown that they had pleaded guilty goes to and only to, in this case, the question of the credit of these two young women. In other words, the Crown wished in-chief to bolster their credit by suggesting that having been dealt with they had no motive for trying to shift the blame from themselves to somebody else. This, of course, in certain circumstances is legitimate although such evidence cannot be conclusive because, for instance, the plea of guilty may have been a result of plea bargaining below...

The circumstances when this sort of evidence can be admitted are these: it is often put to a witness, who has been an accomplice or apparently been an accomplice, by the defence in cross-examination that they have been charged with and not dealt with for this same offence and, in those circumstances, of course, the defence suggest - and it is a perfectly proper and very strong suggestion in some cases - that the witness has a very strong motive for shifting the blame from himself or herself on to the accused.

In certain circumstances when such cross-examination is conducted, it is clearly open to the Crown to prove, if they can, by re-examination that they have been dealt with already by way of rehabilitation of the witness' credit. But in this case no such thing occurred. Accordingly, it seems to me that this evidence was led as to credit and nothing but credit, and on very well-known principles evidence which goes only to credit cannot be admitted in proceedings of any nature.

There is authority in New Zealand which suggests that the proposition I have just suggested is correct. In The Queen v Windsor, the Court of Appeal in New Zealand held...

Whether, therefore, the plea of 'guilty' be regarded as an act or declaration, evidence of it was not admissible against the applicant on his trial... If the evidence of a plea of 'guilty' was neither a declaration admissible against the prisoner nor an admission or confession of which evidence could be given against him, then it is difficult to imagine on what ground it could be received. Its real purpose was, we should imagine, to reinforce the evidence of [the co-accused] by informing the jury that she herself had acted to her detriment upon the truth of the matters alleged in her testimony. But evidence of that could scarcely be admissible against the appellant, for what [the co-accused] said or did when a common purpose had ceased to exist was not admissible against the appellant.

...

Accordingly, I am of the opinion that the fact that the two witnesses pleaded guilty was irrelevant and inadmissible and should have been excluded.[12]

39 It might be noted that this case bears some similarity to Ristic. Starke J observed in that case that the evidence that the two co-accused had pleaded guilty appeared to have been led, primarily, to bolster their credit by showing that they now had no motive to falsely incriminate the accused. The following passage of the Crown's closing address in this case demonstrates an identical purpose:

These two men, Mr [Kalia] and Mr Tatnell have told you that they both pleaded guilty to related charges, they've both been sentenced accordingly. They've got nothing more to hide about any of this. And no histrionics by Mr Andelman could change that.[13]

40 The ultimate result in Ristic was that the applicant's application for leave to appeal against conviction was dismissed. That was because although an error had been made, it had been remedied by the trial judge's redirection in which his Honour clearly stated that:

I certainly did not mean to convey to you, and I do not think I did, that their pleas of guilty of receiving are any evidence against the accused man here of his being guilty of receiving. They are not.[14]

41 Of course, no such instruction was provided to the jury in this case.

42 Starke J's remarks in Ristic, insofar as they went to the admissibility of pleas of guilty by co-offenders, were approved in R v Gallagher.[15] In that case, the applicant had been convicted on 20 counts of receiving secret commissions. In the course of his opening, the prosecutor told the jury that the 'givers of corrupt gifts' (in relation to the transactions forming the basis of the charges against the applicant) had pleaded guilty and been dealt with. The prosecutor also told the jury that such evidence was not capable of being used against the applicant. No objection had been made when the prosecutor had intimated his intention to call such evidence. On the appeal, counsel for the applicant (who had also been trial counsel) stated that he did not object as he considered that his cross-examination of those witnesses would yield material favourable to his client as to the circumstances surrounding their pleas.

43 The prosecutor was then permitted to lead evidence from the relevant witnesses as to the particular charges which they had faced and for which they had been dealt with. Counsel for the applicant then asked one witness whether he had been asked by police to 'falsely nail' the applicant. The witness neither confirmed nor denied that suggestion, but stated his belief that an arrangement had been made that if he were to plead guilty he would receive a bond. Applicant's counsel extracted a statement from each witness to the effect that they considered it 'expedient' to plead guilty.[16]

44 One ground of appeal alleged error for failure to discharge the jury in circumstances where inadmissible evidence was opened to the jury, notwithstanding counsel's failure to object.

In our opinion, the learned trial Judge's refusal to discharge the jury because of inadmissible evidence being opened did not lead to a miscarriage of justice. Mr. Lazarus refrained from objecting to the proposed opening because he judged it to be advantageous to the applicant to have the evidence of the pleas of guilty before the jury. He maintained his stance of non-objection after the learned trial Judge indicated that he would not allow cross-examination as to the motives of the prosecution and had ruled that the correspondence was inadmissible.

...

[In Ristic] Starke J drew a distinction between the evidence of the women's convictions and the evidence that they had pleaded guilty. As to the latter, Starke J held that it could not be led because it went only to credit. He placed reliance upon the judgment of the New Zealand Court of Appeal in R v Windsor [1953] NZLR 83, which case expresses the rule, correctly in our respectful opinion, in a way which covers both the fact of conviction and the fact of a plea of guilty.

The remarks of Starke J which we have quoted are both obiter and expressed in tentative terms. If his Honour meant to convey that evidence of a witness's conviction can be led by the Crown merely to prove that he is an accomplice, we cannot accept the statement as correct. We think it unlikely that his Honour meant any such thing.

However that may be, we repeat our opinion that, in this case, the Crown was not entitled to open or lead evidence of any developer having been charged, brought before a Court, pleaded guilty or convicted until the issue of the credit of a particular witness had been put in issue.[17]

46 In light of Ristic and Gallagher, it was arguable that, in the circumstances of this case, the fact that Kalia and Tatnell had pleaded guilty was inadmissible. The issues surrounding the admissibility of those pleas were not brought to the appellant's attention. He was not invited to question their admissibility. Nor was the issue brought to his attention after that evidence been put before the jury, and the possibility of requesting a discharge raised. Indeed, the potential application of the Ristic line of authority was not noted until the hearing of this appeal.

Evidence of pleas of guilty: need for directions

47 Irrespective of whether ground 1(a) is made out, there is obviously considerable force in ground 1(b)(i). Evidence of the pleas of guilty by Kalia and Tatnell having been adduced by the Crown, it was necessary, in our view, for the trial judge to direct the jury as to what use, if any, they could make of that material. That was so even though the appellant did not seek any such direction.

48 In R v Fountain and Tootell,[18] the applicants (a mother and son) were charged with one count of recklessly causing serious injury, one count of false imprisonment, and one count of attempting to pervert the course of justice. Two co-offenders had previously pleaded guilty to those or similar charges. The Crown led evidence of those pleas.

49 It was argued on behalf of the applicants that the trial judge had erred in failing to give any instructions to the jury as to the use they could make of the evidence that those two co-offenders had pleaded guilty. The trial judge's charge made no mention of the fact that those guilty pleas could not be used against the applicants.

50 Charles JA, with whom Buchanan and Chernov JJA agreed, said:

There was, I think, plainly a possibility that the jury would make improper use of the evidence that Luckman and Ryan had pleaded guilty to the same offences. The prosecutor's submission to the jury certainly did not make it clear that the pleas of guilty by Luckman and Ryan could only be used to rebut any contention by the defence that pressure had been placed by the investigating police officers upon these witnesses to make a statement in support of the prosecution case or to undermine the concessions made by the witnesses under cross-examination in favour of the case of self-defence made by the applicants. On the contrary it seems to me that the prosecutor's words invited the jury to treat the pleas of guilty as evidence tending to establish the guilt of the applicants. On this basis the evidence clearly had the potential to be prejudicial to the applicants who were being alleged to be co-offenders of the persons who had pleaded guilty. In these circumstances the judge should have warned the jury appropriately, as stated in Cowell and Burnett.[19]

51 In R v Cowell,[20] a decision to which Charles JA referred in the above passage, Street CJ had observed that:

Trial judges are astute to ensure that juries are made plainly aware that a plea of guilty by a co-accused is not to be taken into account in the slightest degree in determining the question of guilt of those who remain in charge of the jury.[21]

52 There is no basis for distinguishing Fountain and Tootell in the circumstances of this case. We consider that the jury ought to have been instructed not to use the fact of Kalia and Tatnell's pleas of guilty as tending to establish the guilt of the appellant. As in Fountain and Tootell, the presence of the appellant at the scene with the co-offenders was never in dispute.[22] Kalia and Tatnell's guilty pleas, in relation to incidents that occurred in the same circumstances as those allegedly committed by the appellant, may well have been viewed as highly significant by the jury in the absence of appropriate direction.

Unreliable witness warning - unrepresented accused

53 Turning to ground 1(b)(ii), this also requires an examination of what was said about the evidence of Kalia and Tatnell in her Honour's charge. The following extracts are relevant:

He [the appellant] asked you to disregard the evidence of Kalia, Tatnell and Sezdem. He said that they were not honest people or that they were telling lies, but he said in particular it was implausible, their evidence, in relation to how much money he paid them

...

And he said the evidence of Kalia and Tatnell is not to be believed. He said if he did what they say he did, why did they not report him, and what they have said about the amounts paid is implausible, that if he gave them that much why would he bother stealing at all? It does not add up.[23]

54 The charge, as it related to the evidence of Kalia and Tatnell, largely summarised their evidence and the appellant's attacks on their credit. It does not appear, in terms, to raise the fact that they were criminally concerned in the appellant's offending. The Crown's written submissions similarly could not point to any such passage.

55 Section 165 of the Evidence Act 2008 is, relevantly, in the following terms:

165 Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence -

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

(2) If there is a jury and a party so requests, the judge is to -

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

...

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

56 It was common ground that no request was ever made, pursuant to s 165(2), for a warning as to the reliability of Kalia and Tatnell's evidence. There is no reason to think that the appellant would have understood the potential danger associated with such evidence, or the need to ensure that the jury understood that the fact that the two witnesses had pleaded guilty to theft of the coins did not, of itself, amount to evidence of the appellant's own guilt.

57 The fact that no request was made for a warning as to the potential unreliability of Kalia and Tatnell's evidence does not, of itself, mean that there was no obligation upon the trial judge to give such a warning. Plainly, s 165(5) preserves any 'other power of the judge to give a warning' should the circumstances require it. So much is evident in practice from the variety of cases in which a warning may have been warranted but none was requested.

58 In R v Stewart,[24] for example, Spigelman CJ said:

Where there is evidence that falls within the scope of s 165 but no request is made by a party for a warning, the trial judge may still give a warning relying upon the power recognised in s 165(5). The combined effect of s 164 and s 165 is to provide the trial judge with the flexibility to give a warning appropriate to the case in light of the issues raised and the factors which might affect the reliability of the evidence.[25]

59 In R v Clark,[26] Heydon JA said, to similar effect:

There was no request [for a s 165 warning]. Hence, s 165(3)-(4) do not apply. Section 165(5) preserves any other power of the judge to warn the jury. The appellant's submission must be that the trial judge of his own motion should have given a warning about Mr Brown's unreliability.[27]

60 The argument, as advanced on the hearing of the appeal, was that, in circumstances where the accused is unrepresented at trial, the trial judge is obliged to at least bring the potential application of s 165 to the accused's attention. At no point does it appear that the trial judge in this case raised the issue of s 165 and the appropriate directions to be given regarding the evidence of the co-offenders.

61 In R v White; R v Piggin,[28] Chernov JA said that, where the accused is unrepresented, the judge 'must ensure that the accused is fully aware of the legal position in relation to the substantive and procedural aspects of the case'.[29] That statement gives effect to the following passage in the judgment of Gibbs CJ and Wilson J in MacPherson v The Queen:[30]

[T]he judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial. And although no doubt some accused persons refuse the offer of legal representation for tactical reasons, an accused does not become disentitled to a fair trial because he has declined, and even perversely declined, an offer of legal assistance.[31]

62 In a useful outline of the relevant principles and of the trial judge's role with respect to the trial of an unrepresented accused, the Western Australian Court of Appeal observed in O'Connell v Western Australia[32] that:

A criminal trial is an adversarial process. It is not the role of the trial judge, when faced with an unrepresented accused, to play the part of his or her advocate and give the advice, guidance and representation which counsel would have provided. However, consistent with a trial judge's duty to ensure a fair trial, he or she is under an obligation to give an unrepresented accused such information and advice as is necessary to ensure that he or she has a fair trial. There is no limited category of matters of which a judge must advise an unrepresented accused. The scope of the assistance to be given depends on the particular litigant and the nature of the case. The touchstones are fairness and balance.[33]

63 In our view, it is clear that the reference in MacPherson to 'such information as is necessary to enable [the accused] to have a fair trial' is apt to encompass matters such as the potential applicability of s 165. Raising the prospect of a s 165 warning, and the directions it might require in the particular case, does not, without substantially more, risk the judge being perceived as the accused's advocate.

64 That conclusion is supported not only by the general authorities as to the role of the trial judge in a trial of an unrepresented accused, but also by the approach of the New South Wales Court of Criminal Appeal in R v Baker.[34] There, the unrepresented accused had been charged with maliciously wounding with intent to murder.[35] He was tried by judge alone. On appeal, it was accepted that, if the case had been run before a jury, it ought to have been stressed to the jury that 'there being only one witness asserting the commission of the offence, the evidence of that witness was essentially to be scrutinised with great care'.[36] That was because the witness in question (the victim) was the appellant's ex-wife and there was evidence that she harboured a 'substantial degree of bitterness bordering on outright animosity' towards the appellant.

65 Ireland J (with whom Wood CJ at CL and Kirby J agreed) stated:

The evidence of the victim in the circumstances of this case would have warranted a warning under s 165 of the Evidence Act. Had the case been conducted with a jury, it would have been incumbent upon the trial judge to inform the legally unrepresented appellant of his right to request a warning pursuant to s 165.[37]

66 While not a basis for decision in Baker (that being a trial by judge alone), the above statement is expressed authoritatively and is, with respect, consistent with principle.

Coincidence and tendency evidence - no prior notice

68 In relation to ground 2, we have previously set out the trial judge's initial instructions to the jury as to the way in which they could permissibly use the evidence of uncharged acts. The appellant submitted that, in her charge, the trial judge went further and 'introduced probability or tendency reasoning into her directions on uncharged and charged acts'. The relevant parts of her Honour's charge on uncharged acts are as follows:

The evidence of thefts from parking meters on occasions other than those set out in the indictment may be used as capable of rebutting the accused's case that the coin deposits were from a legitimate source. It is for those reasons solely that each of those pieces of evidence is permitted to be given.

Now, you must understand that even if you accept beyond reasonable doubt all of this evidence or part of it, that evidence does not prove the offences with which he has been charged on the indictment. The commission of the offences on the indictment can only be proved by evidence which relates to each of those alleged offences and not by evidence of thefts which is not the subject matter of a count.

Thirdly, you must not reason that because the accused engaged in the alleged thefts on other occasions or was in possession of an open box in the early hours of 29 October 2008 he was the kind of person who was likely to have done so on the specific occasions with which he has been charged. You must consider each charge against the accused in the light of the evidence in respect of that charge which you were considering.[38]

You may only use evidence of another charge if you are satisfied beyond reasonable doubt that he is guilty of that charge or charges and you are satisfied that the only reasonable inference to draw from this evidence is that the accused was engaged in a continuing course of conduct of stealing coins from parking meters, as I have indicated. If you are not satisfied of the evidence beyond reasonable doubt or you do not think it makes it any more likely the accused committed the other alleged offences, you must disregard it.

As to the impermissible uses of this evidence, first you must not use this evidence to reason that if the accused is guilty of one or more charges on the indictment he must be guilty of other charges on the indictment. That is, even if you accept the evidence that he is guilty of one charge or more, it would be wrong to say simply on this basis that because he is guilty of one or more charges on the indictment he must have offended again and be guilty of other charges on the indictment. That is not permissible.

Secondly, if you accept this evidence you must not use it to prejudice you against the accused. You must not allow this evidence to cause you to close your mind against the accused or to cause you to pay less attention to the other evidence. This evidence is only part of the evidence the prosecution rely and when making your decision you must consider all the evidence.

Finally, flowing from the two warnings I have just given, you must not substitute this evidence for evidence of the offence charged in the particular charge on the indictment. You may only convict the accused of the offence alleged in each charge on the indictment if you are satisfied beyond reasonable doubt that he committed that offence.[39]

70 The Crown's written submissions did not specifically address these parts of her Honour's charge, but, as previously noted, did acknowledge that the charge referred to the appellant's 'pattern of behaviour' in the following passage relating to the evidence of coin deposits:

It was put to you very clearly the basis of each of the charges on the indictment, which is reference to Exhibit P8, the discrepancy chart, and I will not go over that. The prosecution say overall it is a pattern of behaviour and that the only explanation for the large deposits of coins that is reasonable is the fact that the accused stole them in the way alleged.

71 The Crown asserted (without explanation) in its written submissions that that passage of her Honour's charge related to 'coincidence evidence that was clearly admissible'.

72 Evidence will only be admissible on a coincidence basis if it has 'significant probative value', and if the party adducing it has given reasonable notice of its intention to do so.[40] That second requirement does not apply if the Court dispenses with notice requirements or the evidence is adduced 'to explain or contradict coincidence evidence adduced by another party'.[41] No such notice was given, and the notice requirement was not dispensed with.

73 The failure to provide 'reasonable notice in writing' to the other party of an intention to adduce tendency or coincidence evidence is no minor matter.

74 In Bryant v The Queen,[42] Howie AJ (with whom McClellan CJ at CL and Simpson J agreed) made the following comments which are pertinent to this aspect of this appeal:

As the appellant notes in his submissions, no tendency or coincidence notice was filed. This was in breach of both ss 97 and 98 of the Evidence Act. This is an unacceptable practice even though no point was taken by defence counsel. The contents of a properly drafted notice in respect of coincidence evidence was considered in R v Zhang. The contents of a properly drafted notice for tendency evidence was considered in Gardiner v R. The importance of explicitly identifying the related events for the purpose of s 98 and the asserted tendency for the purpose of s 97 should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence.

The Judge should have refused to proceed until proper notices were given notwithstanding the attitude take by defence counsel. Here the whole of the evidence was simply placed before the Judge on the basis it was tendency, coincidence or circumstantial evidence without any attempt to place it into its component parts or identify what evidence was admissible on what basis.[43]

75 The need for such a notice to enable a court properly to determine questions as to the admissibility of such evidence (as well, it should be noted, as matters such as whether certain charges should be severed from the indictment) is all the greater where the court can expect no assistance from an unrepresented accused. In this

case, it meant that the accused remained unaware of the need for care in relation to such evidence, and of his options with respect to the counts subject to that evidence.

76 Accordingly, there is substance in ground 2. This failure to comply with notice requirements must be assessed - in combination with the errors under ground 1 - in considering whether a substantial miscarriage of justice has occurred such that the appeal should be allowed.

77 Ground 3(b) is linked to grounds 1(a) and 1(b). For the reasons we have developed in relation to those grounds, there were errors in the trial associated with the fact that the accused was unrepresented and ill-equipped to take exceptions to the judge's charge.

Whether there has been a 'substantial miscarriage of justice'

78 Having found that errors occurred in the appellant's trial, this Court is next obliged to turn to the text of s 276 of the Criminal Procedure Act 2009 to determine whether, in the circumstances, the appeal should be allowed. That section is in the following terms:

276 Determination of appeal against conviction

(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that -

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.

79 As indicated previously, the Crown submitted that there had been no 'substantial miscarriage of justice', as that phrase is understood in ss 276(1)(b) and (c), and that the appeal should therefore be dismissed. In short, that was because the appellant's conviction was 'inevitable' in any event. In support of that submission, the Crown relied upon the following passage from Baini:

An appellant's demonstration that there has been a "substantial miscarriage of justice" for the purposes of s 276(1)(b) and (c) may be affected by the strength of the prosecution case at trial. In some cases, it may be possible for an appellate court to conclude that there has not been a "substantial miscarriage of justice" because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the appellant was guilty of the crime alleged.[44]

80 The Crown's submissions assert that there was substantial independent evidence that pointed overwhelmingly to the conclusion that the appellant was involved in stealing money from parking meters. No doubt the Crown case was, indeed, a strong one. In addition to the evidence of Kalia and Tatnell, the following matters tended to point in favour of the appellant's guilt:

his admission that he was working on the days in question;
the evidence of Ms Sezgim that the appellant had asked her to 'take' money, and that she had seen the appellant taking bags of money into a private car;
the informant gave evidence that on 45 occasions, either on the day or the day after a shift on which coins were taken, the appellant deposited large quantities of coins into his bank accounts;
there was evidence led from an employee of Crown Casino which was not easily reconcilable with the appellant's statement that his bank deposits were of coins sourced from his Crown Casino winnings; and
coin bags, money and coins were found at the appellant's house.

81 As earlier indicated, the Crown invited the Court, for the purposes of assessing 'inevitability', to allow for the fact that, had the proper directions and warnings been given in relation to the evidence of Kalia and Tatnell, their evidence might have been given no weight at all by the jury. It was submitted that the appellant's convictions were 'inevitable' in any event, on the balance of the evidence, at the very least in respect of the 45 counts the subject of the informant's evidence in relation to bank deposits.

82 The resolution of this question requires a close analysis of the High Court's recent decision in Baini, which dealt particularly with the terms of s 276.

83 The appellant in Baini had been convicted on multiple counts of blackmail. All but one of those counts related to the blackmail of one victim, but one related to the blackmail of another. In the course of his trial, the appellant had made an application to sever the trial of the sole count relating to the second victim. The Victorian Court of Appeal held that the application for severance should have been granted. It held that this error had resulted in a substantial miscarriage of justice in respect of the sole count relating to the second victim, but not in relation to the remaining counts.

84 A majority of the High Court allowed the appeal. It held that an error had occurred at trial because the jury had heard evidence from the second victim that the appellant was a standover man which would not have been admissible had the counts relating to the first victim been tried separately. It remitted the matter to the Court of Appeal to determine whether that error had brought about a substantial miscarriage of justice.

85 In allowing the appeal, the majority set out a detailed construction of s 276. The following salient points affecting the disposition of this appeal emerge from the majority's analysis:

Section 276 is not to be interpreted solely by reference to the interpretation given to the common form criminal appeal proviso in Weiss v The Queen.[45] Comparing 'a statute with its legislative

predecessor ... is only a useful exercise if doing so illuminates the actual text of the new provision'.[46]

There is no 'single universally applicable' definition of a 'substantial miscarriage of justice'. That is because the possible kinds of miscarriage of justice dealt with by s 276(1) are 'too numerous and too different to permit prescription of a singular test'.[47]
With respect to ss 276(1)(b) and (c) (with which this appeal is concerned), the types of substantial miscarriage of justice include cases where 'there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial'.[48]
Those paragraphs also cover cases where 'there has been a serious departure from the prescribed processes for trial'.[49]
A 'substantial miscarriage of justice' may occur where there has been a 'departure from process' even if the 'verdict was open or it is not possible to conclude whether the verdict was open'.[50]
The question whether there has been a 'substantial miscarriage of justice' 'may be affected by the strength of the prosecution case'. In such cases, however, the Court of Appeal must be aware of the 'natural limitations that attend the appellate task'.[51]
A finding that the conviction was 'inevitable' is merely 'relevant' to the Court's determination of whether there has been a substantial miscarriage of justice. It does not conclude the issue.[52]

If it is submitted that the verdict was inevitable, the appellant need show 'no more than that, had there been no error, the jury may have entertained a doubt'.[53]
In assessing 'inevitability', the Court of Appeal must 'decide that question on the written record of the trial'.[54]
In cases such as Baini where evidence has been wrongly admitted or excluded, the Court cannot determine that there has been no substantial miscarriage of justice 'unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made'.[55]

86 This reading of the majority's reasons in Baini demonstrates that s 276 is to be applied on a case-by-case basis, having regard to the particular nature of the error made in the trial. Further, whereas the strength of the Crown case may well be a relevant factor, it is not necessarily determinative.

87 In this matter, we are persuaded that a substantial miscarriage of justice occurred by reason of the errors in the trial. Our conclusion proceeds from an analysis of the nature of the errors made at trial.

88 The duty upon a trial judge to provide an unrepresented accused with necessary information and assistance is onerous, but it is essential in ensuring a fair trial. The judge's failure to raise the question of what warnings were necessary in relation to Kalia and Tatnell's evidence was so fundamental that it might have been described, formerly, as going to the 'root of the trial'. As counsel for the appellant submitted on the hearing of the appeal, the evidence of those two witnesses formed a very large part of the Crown case as it was conducted. Due to his lack of awareness of trial conduct, and the failure of the judge and prosecutor to raise the issues associated with their evidence, it was left but barely tested.

89 As Crawford CJ, Evans and Blow JJ said in Isherwood v Tasmania:[56]

[T]he general rule is that the trial judge must advise the unrepresented accused person of any fundamental procedure or right which could be advantageous to the accused. A trial in which a judge allows an accused to remain in ignorance of such matters can hardly be labelled as fair.[57]

90 There has therefore been a 'serious departure from the prescribed processes for trial'.[58] The prescribed process, as set down by MacPherson and subsequent cases, was for the unrepresented accused to be given such assistance as was necessary to enable him to test the evidence laid against him. That process was not followed.

91 The issues concerning ground 2 also clearly demonstrate a serious departure from prescribed process. For the reasons set out above, the failure by the Crown to provide a notice detailing its intention to rely upon the coin deposit evidence for coincidence purposes was, in the circumstances of this case, a serious departure from the statutorily mandated process with respect to such evidence.

92 Baini makes clear that the strength of the Crown case is not, by itself, a determinant factor in assessing whether a substantial miscarriage of justice occurred. Indeed, this Court's satisfaction that a conviction was 'inevitable' (to use the language of Baini) would not necessarily determine that no such miscarriage occurred. Some serious departures from trial process warrant the conclusion that there has been a substantial miscarriage, regardless of effect. For the reasons we have given, this is such a case.

93 In light of the conclusion we have reached regarding the serious departures from trial process that marred this trial, it is strictly unnecessary to consider whether conviction was 'inevitable' in any event. However, as it was subject to argument in this Court, it is appropriate to make some brief comments on that matter.

94 The most pertinent aspects of the majority reasoning in Baini on this point are as follows:

An appellant's demonstration that there has been 'a substantial miscarriage of justice' for the purposes of s 276(1)(b) and (c) may be affected by the strength of the prosecution case at trial. In some cases, it may be possible for an appellate court to conclude that there has not been 'a substantial miscarriage of justice' because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the appellant was guilty of the crime alleged. But several points must be made about this possibility.

...

If it is submitted that a guilty verdict was inevitable, an appellant need not prove his or her innocence to meet the point. An appellant will meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt. As a practical matter, it will then be for the respondent to the appeal to articulate the reasoning by which it is sought to show that the appellant's conviction was inevitable.

... [T]he inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. (Whether the verdict was open is the question presented by s 276(1)(a).) If it is said that a guilty verdict was inevitable (which is to say a verdict of acquittal was not open), the Court of Appeal must decide that question on the written record of the trial with "the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record". That the jury returned a guilty verdict may, in appropriate cases, bear upon the question.[59]

95 Counsel for the Crown suggested that the references to 'inevitability' should not be read literally. The term should not, it was submitted, be synonymous with 'certain'. Counsel for the appellant, on the other hand, suggested that the use of the word 'inevitable' invited attention to whether the accused had lost a 'fair chance of acquittal'.[60]

96 The term 'inevitable' is not new in this context. Until the 2005 decision of the High Court in Weiss v The Queen,[61] the term was regularly used, both in that Court and in this, in connection with the application of the proviso. It will be recalled that the former s 568(1) of the Crimes Act 1958 (Vic) required the Court of Appeal to allow an appeal if it concluded that 'on any ground there was a miscarriage of justice', subject to the following proviso:

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

It was for the Crown to persuade the Court that the proviso should be applied. Commonly this was approached by seeking to demonstrate that, notwithstanding the error, the conviction was inevitable.

97 The following passages in Conway v The Queen[62] demonstrate the use of the concept of 'inevitability' of conviction in supporting the application of the proviso:

In the present matter, the case against the appellant was overwhelming. Having regard, particularly, to what was said and done at a meeting that took place in the early hours of the morning on which the appellant and McFie were arrested, between those two persons and the two co-offenders, the appellant's conviction was inevitable.[63]

...

[The appellant's] explanation of his conduct was incredible. Had he suggested at any time that he had acted out of a misguided attempt to protect McFie from the consequences of her unsolicited conduct he might have had some basis for suggesting that the matter should go back for retrial. But that has never been his case and he should not now have an opportunity to go back for trial on an altogether different footing from that upon which he chose to attempt to meet the prosecution case that was put against him. His conviction was inevitable. The appeal to this Court should be dismissed.[64]

98 In Gojanovic v The Queen,[65] Chernov JA summarised this area of law in the following terms:

The onus of persuading the Court that the proviso should be applied rests on the Crown. What it must establish in order to succeed in that regard has been variously described - for example, that it was inevitable that the jury would have convicted the applicant in any event or, that he did not lose a fair chance of acquittal by reason of not being able to lead the excluded evidence or, that the evidence against him was so overwhelming that a conviction was inevitable in any event.[66]

99 Indeed, this Court's first decision in R v Weiss[67] - the decision subsequently overturned by the High Court - employed the language of inevitability. Callaway JA (with whom Batt JA and Harper AJA agreed) said:

Putting fundamental irregularity to one side, there are two expressions that are used to describe cases where the proviso does not apply. One expression refers to the loss of a chance of acquittal, whether a 'real chance' or a 'chance which was fairly open'. The other expression is that the conviction of the appellant was inevitable. It is clear from the authorities that they are different ways of expressing the same test. I have always proceeded on the basis that the proviso may be applied where the wrong decision on a question of law or other irregularity made no difference and that that is all that is meant when it is said that an appellant's conviction was inevitable. It was 'inevitable' in the sense that this jury would still have convicted the appellant in the absence of the irregularity, not that he or she would have been convicted by any reasonable jury.[68]

100 What was said in that case accorded with what the High Court had earlier said in Wilde v The Queen,[69] as follows:

As the prosecution case was so strong and the defence was so weak, the authorities which are customarily cited when it is sought to challenge the application of the proviso were insufficient to found an attack upon the judgment of the Court of Criminal Appeal. Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen; Reg v Storey; Gallagher v The Queen. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was

entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen.[70]

101 The majority view in Baini appears to us to be very much to the same effect and to have preserved, moreover, the shifting persuasive onus which lay at the heart of the proviso. As to the first, the majority judgment uses the term 'inevitable' in its ordinary sense, that is, as meaning 'unavoidable' or 'sure to happen'. The appeal court will only be satisfied that a conviction was inevitable if, assuming that there had been no error, there was no possibility that the jury might have entertained a doubt as to the accused's guilt.

102 As to the persuasive onus, the majority view in Baini is that an appellant need show 'no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt'. Once that has been shown, then 'as a practical matter' it will be for the prosecution 'to articulate the reasoning by which it is sought to show that the appellant's conviction was inevitable.'[71]

103 As already noted, it was precisely this approach - by reference to 'inevitability' - which the High Court in Weiss held to be erroneous. It was not correct to approach the task 'by asking what the trial jury would have done had the wrongly admitted evidence not been before it.'[72] Instead, the court held, it was for the appellate court itself to determine whether the guilt of the accused had been proved beyond reasonable doubt.[73] That task was to be undertaken

in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.[74]

104 In Baini, however, the majority was at pains to point out that the 'substantial miscarriage of justice' question under s 276(1) was not to be approached in the same way as the 'unsafe and unsatisfactory' ground.[75] Their Honours emphasised that, whereas the question to be addressed on the latter ground was whether a guilty verdict was reasonably open, the question which must now be addressed in determining whether a substantial miscarriage of justice has occurred is whether a guilty verdict was inevitable - 'at least in cases ... where evidence has wrongly been admitted ... [or] wrongly been excluded'.[76] It would seem to follow that the task of a respondent seeking to uphold a conviction in such a case will generally be more difficult under s 276(1) than it was under s 568(1) (post-Weiss) when the phrase 'substantial miscarriage of justice' appeared only in the proviso.

105 In this case, the precise impact of error is difficult to determine to any meaningful extent. The counterfactual proposed by the Crown - to exclude the evidence of Kalia and Tatnell and to assess whether the remainder of the evidence meant that conviction was inevitable - is, in this case, entirely artificial. Such a course may be appropriate in other cases as, for example, where an item of evidence has been wrongly admitted, but is viewed by the appellate court as having been wholly innocuous.[77]

106 The position is quite different where, as a result of an error on the part of the trial judge, a particular direction required by law has not been given. Any consideration of the consequences of failure to give that direction must be somewhat speculative. That is because the appellate court is required, quite artificially, to consider not the trial that was in fact conducted, but rather one that never took place.[78] Where, as here, such evidence formed an integral component of the Crown case, as it was conducted, it is difficult to meaningfully disentangle that evidence from the remainder.

107 The hypothetical put forward by counsel for the Crown also pays insufficient regard to the prosecutor's invocation of coincidence reasoning in his closing address. That matter, too, had a particularly serious effect upon the trial which must be considered in any overall assessment of whether a substantial miscarriage of justice has occurred.

108 Notwithstanding the cogency of the coin deposit evidence (at least in respect of the 45 charges to which it related), that evidence was represented, in the prosecutor's closing address, simply as 'powerful corroboration of the allegations'.[79] Given the way the prosecutor presented the case, it was likely to assume secondary importance behind the direct evidence of Kalia and Tatnell.

109 It was submitted by counsel for the Crown that, even if a new trial had to be ordered in relation to the 40 charges that were not 'corroborated' by the coin deposit evidence, that should not impact upon the 45 convictions sustained where there was such 'corroboration'. That submission cannot be accepted. We simply do not know the extent to which some or all of these charges may have been cross-admissible had the relevant notices been given. Indeed, for all we know, some measure of severance may have been granted had it been sought. That, in turn, may have led to the exclusion of some of the evidence relating to some charges. It would be wrong, in our opinion, to accede to the Crown's submission and 'cherry pick' these convictions with a view to sustaining some, and not others, particularly given the plethora of errors that were made in the conduct of this trial.

110 For the reasons set out above, we would allow the appeal, quash the convictions and set aside the sentences imposed thereon, and order that a retrial be had on all charges.

[2] (2012) 293 ALR 472 ('Baini').

[5] Citing Baini (2012) 293 ALR 472.

[6] See, eg, AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, 456 [55] (Heydon J).

[10] Her Honour's sentencing remarks in this case record that both Kalia and Tatnell received discounts for their co-operation with police in the cases against the appellant and other offenders: R v Andelman (Unreported, County Court of Victoria, Judge Douglas, 15 November 2011) [21]-[22].

[11] Unreported, Court of Criminal Appeal, Starke, Murphy and Marks JJ, 7 October 1981 ('Ristic').

[14] Ristic (Unreported, Court of Criminal Appeal, Starke, Murphy and Marks JJ, 7 October 1981) 20 (Starke J).