Asling v The Queen [2018] VSCA 132

EVIDENCE - Admissibility - Hearsay evidence - Maker of representation not available - Whether hearsay representation made in circumstances that made it likely that representation reliable - Probative value of evidence - Danger of unfair prejudice - Whether probative value outweighed by danger of unfair prejudice to accused - Evidence Act 2008, ss 65(2)(d)(ii) and 137.

1 On 13 December 2003, shortly after midnight, Graham Kinniburgh was shot and killed in Belmont Avenue, Kew. The deceased had been to dinner in Caulfield on this night and returned home. Shortly after arriving home, he was gunned down in the street. The deceased was shot three times: once in the head, once in the shoulder and once in the thigh. Neighbours observed two men leaving the scene in a sedan motor vehicle.

2 On 4 November 2015, the applicant was charged with the murder of the deceased. On 18 March 2017, following a trial, the applicant was found guilty of that murder. Subsequently, on 21 April 2017, the applicant was sentenced to life imprisonment with a non-parole period of 27 years.[1]

3 The Crown case at trial was that the applicant, Carl Williams, Terence Blewitt and a person known as Witness A entered into an agreement to kill the deceased. Witness A gave evidence at trial that he initially provided the applicant and Blewitt with guns, cash and drugs, as a down-payment on behalf of Williams, to kill Lewis Moran. When the applicant and Blewitt were slow to perform this task, Williams ordered them to kill the deceased instead. The Crown alleged that it was the applicant and Blewitt who shot and killed the deceased on 13 December 2003. The Crown case was one of joint criminal enterprise. That was the basis upon which the Crown sought to impose criminal liability on the applicant.

4 The applicant was not linked to the killing of the deceased by any identification, DNA or other forensic evidence. A significant part of the Crown case consisted of admissions allegedly made by both the applicant and Blewitt to a person referred to at trial as Witness P. Blewitt died at some time between the shooting of the deceased and the applicant's trial.[2] Over objection from the applicant, the judge admitted evidence of hearsay representations (described at trial as 'representations 2-6') made by Blewitt to Witness P about the involvement of the applicant and Blewitt in the shooting of the deceased.[3] While the applicant objected at trial to the admission of Blewitt's hearsay statements to Witness P, the applicant did not object to the admission of the admissions he was said to have made to Witness P.

5 The applicant's case at trial (not to suggest that he carried any onus) was that he was not involved in any way in the offending, and that he did not kill the deceased. In his defence, the applicant relied upon the fact that there was no DNA or other forensic evidence linking him to the killing. The applicant's case at trial was that the witnesses who gave evidence against him, and in particular Witness A and Witness P,[4] were unreliable. Indeed, the applicant's submission at trial was that these witnesses were so unreliable that their evidence could not be accepted or relied upon in any way. Moreover, the rejection of their evidence, it was submitted, required the jury to acquit the applicant.

6 Notwithstanding the applicant's submissions, the jury convicted him of the murder of the deceased. The applicant now seeks leave to appeal against his conviction on the following grounds:

1. The jury's verdict was unsafe and unsatisfactory.

1. The trial judge erred by admitting the evidence of witness P's representations (2-6).

Properly understood, the applicant's complaint in proposed ground 2 concerns the judge's admission into evidence of Blewitt's representations 2 to 6 to Witness P. In the course of argument, the applicant narrowed proposed ground 2 to a complaint about the admission into evidence of Blewitt's representations 2 to 4.

7 Prior to trial, the Crown served notice, pursuant to s 67 of the Evidence Act 2008, of its intention to adduce hearsay evidence of six representations made by Blewitt to Witness P. After hearing argument, the judge concluded that the first representation was not admissible, but representations 2 to 6 were admissible.[5] In summary, representations 2 to 6 were as follows:

(2) Shortly before 13 December 2003, while having a conversation with Witness P at the Angel Hotel in Malvern, Blewitt told Witness P that he and the applicant had been offered the contract to kill Kinniburgh and possibly others. He said that the offer had been made to them in a meeting with Carl and George Williams at a hotel in Taylors Lakes, and that the contract price was $150,000.

(3) A few days after 13 December 2003, Blewitt told Witness P how the murder of Kinniburgh had taken place. He said that they had used the Ford motor vehicle, previously stolen by Witness P and the applicant, and another vehicle (which Witness P understood to be the applicant's green vehicle). Blewitt said that he and the applicant had waited in Belmont Avenue for Kinniburgh to arrive home. The applicant acted as a decoy and yelled out 'Oi dog!' as Kinniburgh exited his vehicle. Kinniburgh fired shots in the applicant's direction. Blewitt then jumped out of some bushes, and shot Kinniburgh in the back of the head. He then shot Kinniburgh again when he was on the ground. Both shots were fired at close range from a revolver. Blewitt said that the applicant and he then made their way to a lane way, where the stolen Ford was burnt.

(4) Blewitt told Witness P that he and the applicant had attended at the Caulfield Racecourse Tabaret after the killing.

(5) In the months following 13 December 2003, Blewitt told Witness P that on the day after the murder he had disposed of the gun used to kill Kinniburgh by throwing it into a body of water from a meshed steel platform on the left hand side of Ballarat Road on the way to Ballarat.

(6) Shortly after 13 December 2003, Blewitt told Witness P that he had collected some of the contract money from Carl and George Williams after the killing, but he said that it was only a portion of the agreed fee.

8 The jury on the applicant's trial was empanelled on 14 February 2017. At trial, the Crown called in excess of 30 witnesses. It is not necessary to refer to the evidence of all of the witnesses called. While we will refer to the evidence of a number of witnesses, the most significant witnesses at trial were Witness A, Witness P and, to a lesser extent, Kathleen Stanton, a former girlfriend of Blewitt.

9 Witness A gave evidence that he was a friend of Williams. At the time of trial, Witness A was in prison. Witness A gave evidence that he introduced the applicant to Williams. He gave evidence of various meetings involving Williams, Blewitt and the applicant.

10 In particular, Witness A gave evidence of a meeting, in about June 2003, at the Sugar Gum Hotel in Sydenham between himself, Blewitt, Williams and the applicant. At this meeting, Blewitt said that he was trying to arrange a meeting with Lewis Moran so that he could organise a plan to have Moran executed. Williams was delighted and said he would pay to have Moran killed. Blewitt and the applicant asked for a down-payment and also asked if they could have the use of two guns.

11 A few days later, Williams gave Witness A a canvas bag to be given to Blewitt and the applicant. Witness A looked in the bag and saw two handguns, some drugs and cash which he estimated to be about $20,000. Witness A subsequently gave the bag to Blewitt and the applicant.

12 Witness A gave evidence of a subsequent meeting at the Sugar Gum Hotel. Witness A dated this meeting as being about a week after the murder of Jason Moran (Jason Moran was murdered on 21 June 2003). At this meeting, there was an updating of information as to where Blewitt and the applicant were in relation to tracking down Lewis Moran. Excuses were offered. Witness A gave evidence:

They [Blewitt and the applicant] were forever making up excuses that it was either not the right time or that they couldn't ever locate Lewis Moran. They kept stalling and at one stage Terry Blewitt said that he had to go to Sydney and Carl Williams wasn't very happy about it and he basically told Terry Blewitt and [the applicant] that, 'If you can't kill Lewis Moran, then kill Kinniburgh'. ... They said that they would take care of it.

13 At trial, telephone records were tendered by the Crown showing calls between Witness A and the applicant, and calls between Williams and Blewitt, in July and August 2003.

14 Witness A was extensively cross-examined. The cross-examination was to the effect that he was a liar who would say anything in support of his own interests. It was put that his evidence implicating the applicant was false and that the lies he told had been told in order that he might be given a reduced sentence in respect of other serious criminal offending. Moreover, it was put that he had in fact been given a reduced sentence and knew that if he did not continue to implicate the applicant (and give evidence in accordance with his statement implicating the applicant) he was at risk of being resentenced in respect of his earlier offending.

15 In the course of cross-examination, Witness A admitted that he had been in prison for the majority of his adult life. He admitted telling lies about other murders. He admitted telling lies to his lawyer in earlier proceedings. He also admitted to being part of a plan to fabricate evidence to falsely implicate another person in respect of the murders of Jason Moran and Pasquale Barbaro.

16 In addition, Witness A admitted that he had received a very much lighter sentence than he might have otherwise expected, for very serious offending, on the basis of his co-operation with authorities. Moreover, he admitted that he knew that if he did not 'stick to his statement' implicating the applicant, then he was at risk of being resentenced. He denied, however, that his evidence against the applicant was false.

17 At the conclusion of Witness A's evidence, the judge gave an unreliable witness warning to the jury. The warning was given on two bases: first, on the basis that Witness A was a person who was criminally concerned in the events giving rise to the death of Kinniburgh; and secondly, on the basis that Witness A had been sentenced for other serious offending and received a lesser sentence because he had given an undertaking to give evidence against the applicant, and 'stood in jeopardy of being deprived of that benefit which he received for co-operating with the prosecution if he did not continue to co-operate with the prosecution in the manner in which he had undertaken to do so to the judge who sentenced him'.

18 Evidence was given at trial from 12 witnesses who were at home in Belmont Avenue at the time of the shooting. These witnesses gave evidence of hearing the shots that were fired (some describing the shots as 'bangs', others as 'cracks' or 'pops like fireworks'). One witness saw a medium sized sedan which she thought was Kinniburgh's car. She saw two men running to another car. Another witness saw a man get into the passenger side of a vehicle before the car drove off. There were varying descriptions given about the car.

19 One of the witnesses at the time of the shooting, Bernadette Fogarty, saw two men running towards a car before they drove off. Ms Fogarty said that the man running to the passenger side was 'a head taller than the car, ... and the other man [running to the driver's door] seemed slightly taller'. In cross-examination, Ms Fogarty agreed that a fair description of the passenger was that he was 'not quite six foot, but approaching it', and that the driver was 'about a touch taller than that'. We interpolate here that there was no dispute at trial that the applicant was 165-170 cm in height.[6]

20 Another witness present at the scene, Wendy Andrews, described the driver of the car as being in his 'mid-20s, between 20 and 30'. Again, we interpolate that, at the time of the shooting, the applicant was aged 43.

21 At approximately 12:09 am on 13 December 2003, a burning Ford Falcon was discovered in a laneway off Doona Avenue. Doona Avenue is a short distance from Belmont Avenue. The Crown case was that, given its proximity in location and time, the fire was connected to the shooting. Evidence was given by residents in houses near the fire. One witness saw a person in the vicinity of the fire. Another heard muffled voices walking away from the area and then heard footsteps running away.

22 Witness P gave evidence that he met Blewitt in the 1990s. Subsequently, while in the company of Blewitt, he met the applicant. Blewitt and the applicant were friends. Witness P said that he, Blewitt, Witness C and the applicant were all very close. They were always looking for a way to make a dollar. They also looked at various places that were possible targets for armed robberies.

23 Witness P gave evidence that in 2003, possibly after July, he and the applicant were discussing various robberies. They decided to steal a vehicle. They then stole one from the Albert Park area (a blue Ford).

24 Witness P said that after the vehicle was stolen, petrol was put in two coke bottles and put into the vehicle. The coke bottles were to be used to set the car on fire after a robbery.

25 Witness P gave evidence that one morning in December 2003, at about 7:00 or 8:00 am in the morning, the applicant and Blewitt arrived at his front door. Witness P said that the applicant and Blewitt 'looked like they'd been up all night'. They sat down in the lounge room where a television set was on. A report of Kinniburgh's murder came on the morning news. There was footage of the burnt out car, and the news was that Kinniburgh had been shot in his driveway overnight. Witness P said the footage of the burnt out car showed the same blue Ford as the one that he and the applicant had stolen in Albert Park. Witness P also said that he knew it was the same car because he knew that the applicant and Blewitt had 'been offered the contract to kill [Kinniburgh]'.

26 Witness P gave evidence, in the months before the killing, Blewitt told him that 'in a pub ... near Melton[7] ... he bumped into George and Carl Williams' and he and the applicant were offered the contract to kill Kinniburgh for $150,000.

27 Next, Witness P gave evidence that, a few days after the applicant and Blewitt had appeared on the morning after the killing, Witness P saw them in another hotel. On that occasion, Blewitt told Witness P that he and the applicant had driven to Kinniburgh's house. Blewitt waited in the bushes. As Kinniburgh pulled in and got out of his car, the applicant yelled 'oi, dog'. Kinniburgh 'returned fire'.[8] Blewitt then 'stepped up behind him, shot him in the head, and then shot him in the body'. Witness P said that Blewitt told him that he shot Kinniburgh in the back of the head and then shot him in the body when Kinniburgh was on the ground.

28 When asked whether Blewitt told him anything more about the shooting, Witness P said that Blewitt told him that the shots were fired 'point blank'. Witness P said that he believed that Blewitt said that two shots were fired and that the weapon used was a .38. As to whether Kinniburgh was in fact shot point blank, a pathologist who examined the body (Dr Matthew Lynch) gave evidence that there was no blackening or stippling associated with the deceased's gunshot wounds. In the absence of clothing or something else being between the gun and the body at the time of shooting, this was said to be suggestive of a shooting that was not at point blank range.

29 Witness P told Blewitt that he was not happy that the Ford he and the applicant had stolen had been used. Blewitt was said to have replied 'collateral damage'. Blewitt also told Witness P that after they had shot Kinniburgh 'they'd left the area after setting fire to the car and gone to the Caulfield Tabaret'.

30 In the course of this part of Witness P's evidence, the judge asked Witness P whether Blewitt told him that the Ford was set on fire or whether this was something that Witness P assumed from what he had seen on television. Witness P responded:

No, that was something Steve [the applicant] told me.

31 Witness P gave evidence that 'within a week or two of the shooting' he discussed the shooting with the applicant. Witness P said he 'was still not happy about the blue car'. Witness P was asked and answered the following questions:

What did the accused tell you, if anything, about the events where Kinniburgh was shot?That Graham had returned fire, he was dodging bullets.

Did he say where they were when this happened?He said he yelled out 'oi, dog'. Graham turned around, fired a shot in his direction.

Did he say where he, that's the accused, was when he yelled out 'oi, dog'?No, said he was dodging so I suspect he was out of the vehicle.

What about Blewitt, did he say where Blewitt was at the time he yelled out 'oi, dog'?Blewitt was behind a bush in the driveway.

Did he say why he yelled out 'oi, dog'?To get Graham's attention. It was widely known that Graham was carrying a gun for protection.

After he yelled out 'oi, dog' and Kinniburgh had fired in his direction what did the accused tell you was the next thing?Terry stepped out and shot him.

Did he say where he shot him?No.

Did he say what they did then after Kinniburgh had been shot?They went and burnt the car. Stephen set the car alight.

Witness P said that the applicant told him that they had set the car alight with the fuel from the coke bottles.

32 Witness P gave evidence that, on another occasion, Blewitt told him that he disposed of the gun in a dam near where he was staying in Melbourne. Witness P's evidence about this conversation was that Blewitt said that the dam was a filtration type plant with an aluminium walkway. Blewitt told Witness P that he threw the gun 'as far as he could into the channel of the water', 'very soon after the murder, maybe the next day'.

33 Witness P was asked questions about the value of the contract on Kinniburgh. He said that after Kinniburgh was killed, Blewitt 'went to pick up some money'. Witness P gave evidence that Blewitt or the applicant told him that '$40,000 was picked up' and that this amount had been collected from 'Carl's crew' and was 'a part payment for the murder of Graham'.

34 Witness P was cross-examined extensively about the circumstances in which he came to make statements against the applicant. In March 2015, Witness P was summoned to appear before the Australian Crime Commission in Queensland. He refused to answer questions. As he was walking out of the Australian Crime Commission, he was arrested in respect of an aggravated break and enter (described also as an aggravated burglary) that he was alleged to have committed 11 years earlier in Mulwala.

35 Witness P agreed that he was taken into custody and extradited to New South Wales. He said that ultimately, he agreed to give a statement about the involvement of Asling and Blewitt in the killing of Kinniburgh. In return for giving a statement implicating the applicant, Witness P sought and received an indemnity in respect of the break and enter he committed in Mulwala and no further action was taken in relation to his contempt of the Australian Crime Commission.

36 Witness P was cross-examined about the theft of the blue Ford, to the effect that this car was stolen in December 2003, rather than July 2003. He maintained that when he stole the car it was at a cold time of year rather than a warm time of year.

37 A letter written by Witness P to police in July 2015[9] was put to Witness P. In the letter, Witness P said:

I Witness P write this statement of my own free will in regards to any statement I have provided or signed to the Australian Crime Commission, New South Wales police force or the Victorian police force. Any statements I have provided have been completely fabricated in order to avoid incarceration. The statements were induced with the promise of immunity by all three departments with their knowledge that I was mentally unstable and suicidal, which I guess is quite obvious as you can see the end result. Any information which may have any factual base not of my knowledge was second-hand information ... I used this information to secure my release from custody on minor charges. At no stage did Steve Asling or Terence Blewitt speak to me about any allegations they are accused of as a result of all this. I am suffering from PTSD which has forced me to take my own life. The rope I used to hang myself was purchased with funding provided to me by the Victorian police force. They also have the receipt. I was left with no choice as I was not prepared to lie in court about things I have no knowledge of concerning Mr Asling or Mr Blewitt.

38 Witness P acknowledged that he sent the letter. He said that, when questioned about it on an earlier occasion, he had said 'can't your bosses take a joke'. At trial, Witness P said that he was 'in a fragile mental state'. He was then cross-examined about false denials he had made about ever previously saying that his statement implicating the applicant in the murder of Kinniburgh was untrue.

39 Ultimately, it was put to Witness P that he lied about both the applicant and Blewitt telling him that they had killed Kinniburgh. Witness P denied that he had lied.

40 At the end of Witness P's evidence, the judge gave an extensive warning about Witness P's evidence to the jury. The first direction the judge gave was that the evidence of Witness P may be unreliable. The judge gave two reasons for giving that direction: first, the evidence suggesting that Witness P made statements implicating the applicant for the purpose of obtaining an indemnity from prosecution for the offending he committed in Mulwala (which indemnity was granted, but on condition that if he did not give evidence implicating the applicant then the indemnity would be revoked), and the fact that the applicant was also motivated to avoid being dealt with for contempt of the ACC, gave Witness P a motive to give the evidence he gave;[10] and secondly, the fact that Witness P first made a statement implicating the applicant some 12 years after the relevant events occurred, gave rise to a number of disadvantages for the applicant (a lack of detail in the evidence, the loss of the opportunity to make enquiries, and a more limited capacity to test the evidence in cross-examination).

41 Next, the judge gave directions about the evidence that Witness P gave that the applicant had made admissions to him. Following those directions, the judge gave directions about the evidence of Witness P concerning Blewitt's hearsay statements.

42 As to Witness P's evidence about admissions made by the applicant, the judge told the jury that they had to be satisfied beyond reasonable doubt that the applicant did make the particular statements constituting the admissions to Witness P, and that what the applicant said to Witness P was truthful. The judge told the jury that it was the experience of the law that evidence of admissions, that are alleged to have been made by an accused person out of court of the kind that Witness P said the applicant made to him, may be unreliable. The jury was directed that it was required to exercise particular caution in determining whether it accepted Witness P's evidence about the applicant's admissions. The judge identified three reasons why this evidence might be unreliable: first, it was easy to fabricate and difficult to contradict or test; secondly, even if Witness P was truthful, the possibility existed that Witness P might not have accurately remembered or recalled or repeated the applicant's statement to him; and thirdly, the possibility existed that the applicant, in making a statement to Witness P, was boasting or exaggerating or otherwise not telling the truth.

43 The judge then turned to Witness P's evidence about Blewitt's hearsay statements to him. The judge began this part of his direction by telling the jury that it would need to be satisfied that the evidence of Witness P as to what Blewitt said was both truthful and reliable, and also that what Blewitt said to Witness P was truthful and reliable.

44 The judge then gave directions about the caution that the jury needed to exercise in relation to hearsay evidence. In this part of his direction, the judge identified the fact that Blewitt was not available to confirm, deny or qualify what Witness P said. The judge also said that it was important to bear in mind that hearsay evidence necessarily involved a witness repeating what was said out of court and that such evidence is 'necessarily prone to error'. The judge then identified the following matters as requiring the jury to be cautious with this evidence:

• the out of court statements made by Blewitt to Witness P were not made in the serious formal atmosphere of a court;
• the statements made by Blewitt to Witness P were not made under oath or affirmation;
• the jury did not have the opportunity to observe and hear Blewitt relate what he said to Witness P (the judge described the advantage of observing and hearing a witness as 'an enormous advantage in assessing and evaluating a witness's evidence'); and
• Blewitt's alleged statements could not be cross-examined or tested in court.

45 The judge then gave another reason for caution in respect of Blewitt's hearsay statements. The judge said that if the jury was satisfied that Blewitt truthfully told Witness P about his own involvement in the killing of the deceased then, on Blewitt's own account, he was criminally concerned in the events which gave rise to the trial. The judge reminded the jury what he had said about that matter in relation to Witness A and why that evidence may be unreliable.

46 Finally, the judge gave the jury an anti-propensity reasoning warning in relation to the evidence given about other criminal activity and discreditable conduct engaged in by the applicant.

47 Kathleen Stanton gave evidence that she first met Blewitt in about 1998. She commenced a relationship with him in 2003. Blewitt moved in with her in about April 2003. Stanton described Blewitt as a drunk. During their relationship, Blewitt was only employed for about six weeks. This was at the commencement of the relationship.

48 Stanton gave evidence that Blewitt and the applicant were friends. She said that she met the applicant in around mid to late 2003.

49 Stanton gave evidence of going to hotels with Blewitt. She gave evidence of an occasion in July or August 2003 (three weeks after Jason Moran was killed)[11] that she and Blewitt went to the Sugar Gum Hotel. While they were at the hotel, Stanton went into the poker machine room. While this was happening, Blewitt, Witness A and Williams had a conversation that lasted for over an hour.

50 Stanton gave evidence that around mid-November 2003, towards the end of that year, Blewitt caught the train two to three times a week to meet the applicant. She said that Blewitt told her he was taking the train to Spencer Street station to be picked up by the applicant from there. He would usually arrive back home at about 11:00 pm. Sometimes he would call her to pick him up from the station.

51 Stanton then gave evidence that, on 12 December 2003, she drove Blewitt to the station. She said Blewitt told her that he was going to meet the applicant (although she was not 100 per cent sure about that). She said that Blewitt did not come home that night.

52 Stanton said that Blewitt next arrived home just prior to lunchtime on 13 December 2003. Blewitt put the TV on a news channel and then watched it constantly. She described Blewitt as being 'very obsessed with every media report'. She described the local news on that day as being 'mostly about Graham Kinniburgh'. Stanton was asked and answered the following questions:

What was his actual demeanour like, the way he seemed?---He was paranoid, he was fidgety, he was still obsessing over the news and the radio, but every time a car pulled up out the front or drove past he would look through the blinds.

Was this his normal behaviour or different from his normal behaviour?---Very different from his normal behaviour.

53 Stanton was asked whether there was ever an occasion when she saw Blewitt in possession of a significant sum of cash. She said that she recalled once seeing him with an amount that she thought was around $8,000. She thought this was in January 2004 (although later in her evidence, she said that she thought it was just after Christmas 2003). This was at a time when Blewitt was not working. On further questioning, Stanton said that she saw this cash about five to six months before Blewitt's disappearance in April 2004.

54 In cross-examination, Stanton agreed that on the 10 or 12 occasions she had been to the Sugar Gum Hotel with Blewitt, she had not seen the applicant. As to the reliability of Blewitt's statements to her, she agreed that you could 'not always put much stock' in what Blewitt said. She also said that on the occasions when Blewitt told her that he was going to meet the applicant, she had 'no idea whether that was truthful or not'.

55 Witness C was initially a significant witness in the Crown's case against the applicant. He gave evidence of conversations he had with the applicant in about 2006 when they were incarcerated together. In one of these conversations, Witness C said that the applicant explained how the killing happened and implicated himself as the killer.

56 Nothing further needs to be said about Witness C's evidence. By the time of final addresses, the prosecutor completely disavowed any reliance upon the evidence of Witness C. The jury was instructed in the clearest terms to disregard the evidence. In this Court, the Crown accepted that, when considering the applicant's proposed grounds of appeal, Witness C's evidence was to be ignored in its entirety.

57 The applicant called no witnesses and did not give evidence at trial.

58 In his charge, the judge gave detailed warning and directions concerning the reliability of the evidence of Witness A, Witness P and Stanton. These directions included a repetition of the detailed directions the judge had given the jury at the conclusion of the evidence of Witness A and Witness P.

59 As part of his directions, the judge provided the jury with a 9-page written document headed 'Summary for jury: specific evidentiary directions' ('the directions document'). This document contained a detailed, thorough and correct exposition of all of the reasons why the jury was required to exercise particular care and be cautious in relation to the evidence of Witness A, Witness P and Stanton.

60 The applicant's proposed grounds of appeal raise two issues: first, whether the judge erred in admitting Blewitt's representations 2 to 4 (proposed ground 2, as refined in argument); and secondly, whether the verdict of the jury was unreasonable or could not be supported having regard to the evidence[12] (proposed ground 1). It is convenient to deal first with proposed ground 2.

61 The judge commenced Ruling No 2 with a brief description of the background circumstances,[13] before setting out representations 2 to 6.[14] The judge then identified the provisions relied upon by the Crown in support of its contentions that Blewitt's hearsay representations were admissible. Of particular relevance were ss 65(2)(d) and 65(7) of the Evidence Act.

62 The judge then dealt with the High Court's decision in Sio v The Queen.[15] The judge said:

In its recent decision in Sio v The Queen, the High Court considered the construction of s 65(2)(d)(ii) of the Act. The Court emphasised that it is important to focus on the precise representation that is sought to be relied on by the prosecution, and to determine whether, in the circumstances in which that representation was made, it is likely that it was reliable. The High Court specified that, in determining the admissibility of evidence pursuant to that subsection, a court should not approach the issue in a 'compendious' manner by reference to an overall impression as to the general reliability of the statements made by the representor.

In Sio, the appellant had driven a co-offender, Filihia, to premises, which Filihia entered alone, armed with a knife, intending to commit a robbery. In the course of an altercation in the premises, Filihia stabbed and killed an employee of the premises. Filihia removed some of that employee's possessions, left the premises, and was driven away by the appellant. The appellant was charged on indictment with the murder of the employee and with armed robbery with wounding. He was acquitted of the murder, but convicted of the armed robbery. One of the questions, determined by the High Court, concerned the admissibility of statements made by Filihia to the police implicating the appellant in the armed robbery. The police had conducted a recorded interview with Filihia, in the course of which he said that he had obtained the knife from the appellant who had it in his vehicle. In a statement to the police, Filihia stated that the appellant had put him up to robbing the premises, and that he had given the knife to Filihia.

In considering s 65(2)(d)(ii), the trial judge, and the New South Wales Court of Appeal, considered the question of the likely reliability of the representations, made by Filihia to the police, by reference to the overall impression to be gained from a consideration of the totality of Filihia's interview and statements. The High Court held that that approach was erroneous. Rather, it held, s 65(2)(d)(ii) requires a judge to focus on the particular representations sought to be adduced in evidence, and on the circumstances in which those representations were made. The Court stated:

It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.

...

... The focus demanded by the language of s 65 is inconsistent with the impressionistic evaluation involved in the compendious approach adopted by the Court of Criminal Appeal. The language of the statute assumes the identification of each material fact to be proved by a hearsay statement tendered in reliance on s 65 and the application of the section to that statement, whereas the compendious approach applied by the trial judge in the Court of Criminal Appeal is not focused in this way. In addition, the approach which is focused upon the particular representation tendered to prove a particular fact in issue has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials.

...

Section 65(2)(b)(ii) requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character. One category of circumstances that has been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule was identified in Wigmore on Evidence as those circumstances that 'are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed'; in other words, circumstances that of themselves tender negative motive and opportunity of the declarant to lie.[16]

63 Next, the judge referred to s 137 of the Evidence Act and the definition of 'probative value' in the Dictionary to that Act.[17] The judge then referred to the High Court's decision in IMM v The Queen,[18] noting that the plurality in the High Court held that 'in assessing the probative value of the evidence, the trial judge was to assume that the jury would accept the evidence that was sought to be admitted'.[19]

64 The judge concluded that Blewitt's representations were relevant to a fact in issue and that the hearsay evidence sought to be adduced was first-hand hearsay. There is no dispute about those matters in this Court.

65 In relation to s 65(2)(d) of the Evidence Act, the judge noted that it was common ground that each of the representations were against the interests of Blewitt at the time they were made, so as to satisfy the requirements specified in sub-para (i) of s 65(2)(d).[20] The judge identified the critical issue as being whether each of the representations was made in circumstances that made it likely that the particular representation was reliable for the purposes of s 65(2)(d)(ii).

66 Next, the judge recited the submissions of the parties, including the applicant's submission that even if the evidence was admissible under s 65(2)(d), it should be excluded pursuant to s 137 of the Act because any probative value of the evidence was outweighed by its prejudicial effect.[21] In that regard, counsel for the applicant submitted to the judge that the vice of the evidence, if admitted, would be to corroborate the truthfulness of the admissions which Witness P said the accused made to him. Moreover, the evidence as to the representations was vague and imprecise - Witness P first being called upon to recollect the representations some 12 years after the event. In such circumstances, it was submitted, the defence would not be able to adequately test the evidence of Witness P as to Blewitt's representations.[22]

67 The judge commenced his analysis with a description of the relationship between Witness P and Blewitt from the time they met, and then over the ensuing years. The judge described a relationship of trust between Witness P, Blewitt and the applicant, saying that the existence of that relationship enhanced the proposition that it was likely that the representations made by Blewitt to Witness P were reliable.[23] The judge then said:

In particular, there was nothing about the relationship between Blewitt and Witness P which would have induced Blewitt to have fabricated an account in which he untruthfully implicated himself in the murder of Kinniburgh. Further, and importantly, at the time both Witness P and Blewitt were close friends of the accused. It was unlikely, in those circumstances, that Blewitt would have untruthfully implicated the accused in the murder of Kinniburgh when speaking to Witness P. There was nothing about the circumstances, in which each of the representations were made, that suggests that Blewitt had any motive or reason to untruthfully state that the accused had been a party to the killing of Kinniburgh. Unlike in Sio, Blewitt was not in the position of a co-offender who was seeking to shift the blame onto someone else, in order to evade or mitigate his responsibility for the crime that he was discussing with Witness P. In that respect, it is relevant that in his description of the shooting, contained in representation number three, Blewitt ascribed a more significant role to himself than to the accused, by stating that he (Blewitt) fired the fatal shots, while the accused acted as a decoy. In representations five and six respectively, Blewitt only implicated himself (and not the accused) in disposing of the gun, that had been used in the shooting, and in collecting the contract money. Those considerations are important, and of substantial weight, in determining whether, for the purposes of s 65(2)(d)(ii), the representations, sought to be led by the prosecution, were made in circumstances that make it clearly that they are reliable.[24]

68 The judge then discussed the evidence about Blewitt's drinking habits and the extent that might have affected the reliability of what he said to Witness P.[25] The 'handicap' brought about by the elapse of time between relevant events and Witness P's first statement, the lack of detail given by Witness P, and the other matters of potential prejudice relied upon by the applicant were then discussed by the judge in some detail.[26]

69 Finally, the judge dealt with each of the representations individually. With respect to representations 2 to 4, the judge said:[27]

As indicated, Witness P states that the second representation was made by Blewitt to him at the Angel Hotel in Malvern. The representation is clearly relevant, as it bears directly on the probability of the issue whether Blewitt and the accused were a party to a joint criminal enterprise with Williams to kill Kinniburgh.

In his statement, Witness P was unable to be precise as to the date on which that representation was made. In the context of the ongoing 'underworld war' at that time, it is unlikely that Blewitt would have been telling his friend (Witness P) that he was a party to a contract with Carl Williams to kill Kinniburgh, if that were not the case. Equally, it is unlikely that he would have been telling Witness P that the accused was a party to that contract, if that were not the case. On the contrary, in that context, it is likely that what Blewitt said to Witness P was reliable. Accordingly, in my view, the evidence is admissible under s 65(2)(d)(ii) of the Act.

For the purpose of completeness, if the evidence of the second representation were not admissible under s 65(2)(d), I would not consider that it fulfils the requirements of subsection (b) or (c). There is no evidence as to when the second representation was made to Witness P. Accordingly, it cannot be concluded that the statement was made 'when or shortly after' the asserted fact (the contract between Blewitt and Williams) occurred. Accordingly s 65(2)(b) would not apply to the representation. While I have concluded that the representation was made in circumstances that make it likely that it was reliable, I do not consider that, for the purposes of subsection (c), it could be concluded that it was made in circumstances that made it 'highly probable' that the representation was reliable.

The evidence, comprising the second representation, is of probative value to the prosecution as it provides direct support to the prosecution case that Blewitt and the accused were party to a joint criminal enterprise with Williams to murder Kinniburgh. For the reasons that I have already outlined, I do not consider that, if the evidence were admitted, the defence would suffer unfair prejudice, other than through its inability to cross-examine the maker of the hearsay statement, namely, Blewitt. In each case, that disadvantage would, in my view, be sufficiently addressed by an appropriate direction to the jury. It follows that the probative value of the evidence outweighs any prejudicial effect of it. Accordingly, the evidence of the second representation is admissible.

I turn next to representation number three. The evidence is not entirely clear as to when the conversation occurred, in which that representation was made. In paragraph 17 of his statement, Witness P stated that the conversation occurred 'within days' of the murder of Graham Kinniburgh. In the voir dire, he said in cross-examination that it took place 'after December', and in re-examination he said that it occurred within a month of the murder of Kinniburgh.

The context to the statement is, I consider, important. In particular, according to Witness P, the topic of Kinniburgh's murder was raised when Witness P told Blewitt that he could not believe that 'they' had used the Ford vehicle, which Witness P had assisted the accused to steal. According to Witness P, Blewitt replied '... that that was the way it went down, that there was a window and he and Steve took it'. It was then that Blewitt descended to detail about how the killing took place, in terms that I have summarised earlier, and which comprise the third representation.

The topic, about using the blue Ford, arose because, according to Witness P, when Blewitt and the accused visited him on the morning after Kinniburgh had been killed, the news footage on the television displayed a burnt out blue Ford sedan which appeared to be of the same model of Ford vehicle that Witness P and the accused had earlier stolen in Middle Park. That fact makes it plausible that, in a subsequent conversation, Witness P would have raised with Blewitt the fact that they had used the Ford vehicle in the killing of Kinniburgh. In those circumstances, it is unlikely that Blewitt would have conceded being involved in the murder of Kinniburgh, with the accused, and using the Ford vehicle in connection with that killing, unless he was then telling the truth. As I have already pointed out, the relationship between Witness P, Blewitt and the accused, as described by Witness P, was such as to make it likely that the type of revelations made by Blewitt to him, contained in the third representation, were reliable.

The third representation is clearly of high probative value. It is (as it were) direct evidence of the involvement of both Blewitt and the accused in the killing of Kinniburgh. Counsel will be able to cross-examine Witness P effectively as to the lack of detail relating to the circumstances in which the representation was made to him by Blewitt. Any disadvantage, in that respect, can be suitably offset by an appropriate direction by me to the jury, both relating to the hearsay nature of the evidence, and as to the disadvantage to the defence arising from the delay in Witness P being called upon first to recall the conversation that he had with Blewitt. In those circumstances, in my view the probative value of the evidence substantially outweighs its prejudicial effect.

The fourth representation, sought to be adduced by the prosecution, was that Blewitt told Witness P that he and the accused left the scene of the murder, and one of the places they went to was the Caulfield Racecourse Tabaret. It is not clear whether that representation was made at the same time as the third representation, or on a different occasion. In the voir dire, Witness P said that Blewitt only spoke to him on two or three occasions about the circumstances of the murder. Representation four is contained in Witness P's statement immediately after representation number three, in terms that suggests the two representations were made at the same time.

In any event, it would seem that the fourth representation was made in a similar context, namely, discussion by Blewitt with Witness P about the circumstances of the murder, and its aftermath. On any view, the fourth representation was contextually connected with the third representation, whether or not it was made on the same occasion. For the reasons that I have stated in respect of the third representation, I consider that the circumstances, including the relationship between Witness P and Blewitt at the time, were such that make it likely that that representation is reliable. For the same reasons, I am also of the view that the probative value of the representation would outweigh the risk of any unfair prejudice to the accused. Accordingly, representation four is admissible.[28]

70 In his written case, the applicant submitted that 'the circumstances that were said to support the likelihood that [Blewitt's representations] were reliable were not satisfactorily illustrated or advanced at the trial'. The submission was then made that the argument for exclusion should be revisited 'in light of the judge's ruling and the subsequent trial'. The applicant then submitted that Ruling No 2 required reconsideration in the light of the evidence actually given by Stanton.

71 A difficulty with all of the submissions in the applicant's written case is that, notwithstanding the fact that the applicant was represented at trial by very experienced counsel, no such submission was made on his behalf at any time during the trial. In particular, no submission was made that the judge should reconsider his ruling after Stanton had given evidence, which was before Witness P did so. Recognising these difficulties, the applicant abandoned the argument in his written case and advanced a considerably more limited argument in this Court.

72 The argument advanced in this Court was, first, limited to representations 2 to 4. Secondly, the argument advanced in this Court did not cavil specifically with the facts as set out by the judge, or the judge's conclusions about those facts.

73 The argument ultimately advanced was one based upon what the High Court said in Sio. In Sio, the appellant had driven a co-offender, Filihia, to premises, which Filihia entered alone, armed with a knife, intending to commit a robbery. In the course of an altercation in the premises, Filihia stabbed and killed an employee of the premises. Filihia removed some of that employee's possessions, left the premises, and was driven away by the appellant. The appellant was charged with the murder of the employee and with armed robbery with wounding. He was acquitted of the murder, but convicted of the armed robbery. One of the questions, determined by the High Court, concerned the admissibility of statements made by Filihia to the police implicating the appellant in the armed robbery. In a statement to the police, Filihia said that the appellant had put him up to robbing the premises, and that he had given the knife to Filihia. An issue in Sio was whether Filihia's statement to police about the involvement of the appellant was made in circumstances that made it likely that it was reliable within the meaning of s 65(2)(d)(ii) of the Evidence Act.

74 The High Court concluded that Filihia's hearsay statement was not made in circumstances that made it likely that it was reliable. The Court said, in a passage relied upon by the applicant in this Court:

Evidence by an accomplice against his or her co-offender has long been recognised as less than inherently reliable precisely because of the perceived risk of falsification. Statements by an accomplice afford a classic example of a case where a 'plan of falsification' may be expected to be formed, given the obvious interest of one co-offender to shift blame onto his or her accomplice, especially where the circumstances also include the opportunity to seek to curry favour with the authorities. That the evidence of accomplices is evidence apt to be unreliable by reason of a motive to shift blame to the co-offender is recognised by s 165(1)(d) of the Evidence Act, which expressly treats, as 'evidence of a kind that may be unreliable', 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".

One must look to the circumstances in which Mr Filihia asserted that Mr Sio 'gave [him] the knife' and 'put [him] up to robbing the brothel' for reasons to reach the positive state of satisfaction as to the likely reliability of the assertion. In this regard, the best that can be said is that near contemporaneity of the statement with the commission of the crimes in question meant that the risk of an honestly mistaken recollection was slight. But the question mark over the reliability of the assertion by reason of the fact that it was made by an accomplice is not answered by pointing to the unlikelihood that Mr Filihia's memory of events had faded. As Lord MacDermott said in Tumahole Bereng v The King:

"[F]alse evidence given by an accomplice is commonly regarded as more likely to take the form of incriminating the wrong person than of imagining the crime charged."[29]

75 The narrow submission ultimately put by the applicant on proposed ground 2 was that Blewitt's statements about the offending were unreliable for the reasons given by the judge in his directions to the jury. Section 65(2)(d)(ii) was not made out because, by definition, Blewitt's hearsay statements were unreliable,[30] and therefore made in circumstances that made it likely that they were unreliable within the meaning of s 65(2)(d)(ii). Sio, it was submitted, mandated this conclusion. The applicant relied specifically on what the High Court said in Sio about the unreliability of statements made by co-offenders that implicate an accused. In support of this submission, the applicant referred to s 31 of the Jury Directions Act 2015 where the expression 'evidence of a kind that may be unreliable' is defined to include 'evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the trial'.[31]

76 The applicant submitted that it followed from the above that Blewitt's evidence was unreliable, and that his hearsay representations were necessarily made in circumstances that could not be held to have made it likely that they were reliable. The judge was, therefore, wrong when he ruled in favour of the admission of Blewitt's representations 2, 3 and 4. In the alternative, the judge was wrong not to exclude the evidence of Blewitt's representations under s 137 of the Evidence Act.

77 The respondent submitted that there was no substance in the applicant's arguments. The critical consideration was the circumstances in which Blewitt's hearsay representations were made. Unlike the circumstances in Sio (where the co-offender was making a statement to police), in the present case Blewitt was talking to a friend. The perceived risk of falsification in a statement by one accused to police was not present in a different case where the co-offender did not have a motive to minimise his own involvement in the offending.

78 The fact that the judge had given the jury an unreliable witness warning (both about Witness P and Blewitt) was not decisive. The judge's directions were (correctly) to the effect that the statement or evidence of a co-accused may be unreliable - not that such statements or evidence were necessarily unreliable.

79 For the reasons given by the judge, the judge did not err in admitting Blewitt's hearsay representations. Nor was there any error in not excluding the representations under s 137 of the Evidence Act.

80 In our view, the respondent's submissions must be accepted. In argument, it was put to senior counsel for the applicant that a consequence of the acceptance of his submissions was that s 65(2)(d)(ii) could never be satisfied in a case where the relevant hearsay representation was made by a co-offender. Counsel for the applicant accepted that proposition. But, in our view, the proper construction and application of s 65(2)(d)(ii) cannot permit of such a result.

81 The fallacy in the applicant's submission is that all evidence given by a witness whose evidence may be unreliable is evidence given in circumstances that make it likely that it is unreliable. With respect, the applicant's argument fails to pay proper attention to the text of s 65(2)(d)(ii) or the language of the High Court in Sio. In Sio, the High Court was at pains to emphasise that it was the circumstances in which the hearsay representation was made that were critical, rather than the mere classification of the representor into some particular category of witnesses.[32] Moreover, so far as s 31 of the Jury Directions Act is concerned, it is to be remembered that the evidence of a person who might reasonably be supposed to have been criminally concerned in the offending is defined to be evidence of a kind that may be unreliable.

82 It follows that the applicant's arguments based upon the High Court's decision in Sio and s 31 of the Jury Directions Act (which arguments we note were not put to the judge) must be rejected. For the sake of completeness however, we should also say that, in any event, we see no error in the judge's careful and detailed reasoning in which, after examining the circumstances of each representation, he concluded that it was likely that each of representations 2 to 4 was reliable for the purpose of s 65(2)(d)(ii).

83 Similarly, we see no error in the judge's refusal to exclude Blewitt's hearsay statements under s 137 of the Evidence Act. Such risk of unfair prejudice as existed in admitting those statements was, we think, more than adequately being dealt with by detailed directions and warnings of the kind that were actually given by the judge following the evidence of Witness P and during his charge to the jury.[33]

84 Proposed ground 2 is not reasonably arguable and must be rejected.

85 The applicant submitted that the evidence of Witness A and Witness P was essential to the prosecution case. Without that evidence, there was no case against the applicant.

86 In submitting that the jury could not act on any of Witness A's evidence, the applicant made the following points:

(1) Witness A has an extremely bad character, amongst other things, the evidence showed him to be 'devoid of moral boundaries'.

(2) Witness A was criminally involved in the enterprise to murder Kinniburgh.

(3) The evidence established that Witness A was prepared to lie in any circumstances to obtain a benefit for himself.

(4) Witness A had previously been part of a plan to falsely implicate another person of the crime of murder.

(5) Witness A accepted in evidence that before he made a statement against the applicant he was in a 'dire situation', and that he knew that the making of a statement would likely result (and later did result) in a substantial reduction of a sentence to be imposed upon him. Moreover, the maintenance of his statement against the applicant had the capacity to increase his prospect of being paroled once his non-parole period expired.

(6) Witness A admitted that he had previously lied in other proceedings.

(7) Witness A understood that if he did not maintain his statement against the applicant then he was at risk of being re-sentenced for his earlier offending.

87 The applicant submitted that there was no independent evidence supporting Witness A's implication of the applicant. Parts of Witness A's evidence were said to be implausible, and Witness A was said to have much to gain from maintaining a false story against the applicant. It was also observed that, while Witness A's evidence was that he handed over a bag containing two revolvers, only one of the guns used to shoot Kinniburgh was a revolver.

88 As to Witness P, the applicant submitted that it was not open to the jury to accept any of his evidence for the reasons given by the judge in his detailed directions to the jury about Witness P. The following points were then made:

(1) Witness P had powerful motives to lie (the dropping of the charge of aggravated burglary, and the dropping of a potential prosecution for contempt of the ACC; the prospect of sharing in a reward; and the wish to protect his own family from criminal investigation or prosecution).

(2) The unreliability of Witness P's evidence was palpable with reference to the theft of the blue Ford. It was plain that the blue Ford was stolen in December 2003, not during the winter months of that year. Witness P's evidence about the theft was plainly wrong in respect of material particulars (time and place of the theft).

(3) The course of Witness P's own evidence contained lies, retractions and alterations. Moreover, his evidence was excessively vague in critical parts.

(4) A number of the essential ingredients in Blewitt's hearsay representations to Witness P were wrong. For example, Kinniburgh was not shot in his driveway (37 Belmont Avenue), he was shot on the roadway outside No 33.

(5) Witness P's character was very bad. He was a proven liar.

89 In relation to the unreliability of Blewitt's hearsay representations, the applicant relied upon Stanton's evidence that Blewitt was a drunk whose statements could not be relied upon. The applicant also relied upon the directions given by the judge to the jury about the need for caution (and the reasons for that need) when considering the evidence of Blewitt's statements.

90 The respondent submitted that the jury had the benefit of hearing and seeing the witnesses (although Witness A and Witness P both gave their evidence by video link).

91 The three critical witnesses were said to be Witness A, Witness P and Stanton. It was submitted, however, that there was other evidence that supported the Crown case. For example, evidence was given by Detective Sergeant Morse that the calibre of the weapons used to shoot Kinniburgh was not released to the public, yet Witness P's evidence was that Blewitt told him that the weapon used to kill Kinniburgh was a .38. Ballistics evidence given at trial was to the effect that three firearms were used by Kinniburgh and his assailants, one of which fired .38 rounds. The weapon which used .38 calibre rounds was used to inflict the head and shoulder wounds (each of which was fatal), but not the wound to the deceased's thigh.

92 Senior counsel for the respondent referred us to the closing address for the prosecution, which he said marshalled the arguments in favour of a guilty verdict. One of the arguments advanced was that a second detail of the circumstances of the killing had not been publicly released. That is, that the deceased had been shot in the back of the head. This was said to be another circumstance telling in favour of the reliability of the representations made by Blewitt to Witness P.

93 While there were 'problems' with the evidence of Witness A and Witness P, the Crown case had to be looked at in its totality. Properly analysed, it could not be said that the jury must have entertained a doubt about the guilt of the applicant.

94 Proposed ground 1 engages s 276(1)(a) of the Criminal Procedure Act 2009. That section requires the Court to allow an appeal against conviction if the Court is satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. As has been said many times before,[34] the relevant question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt: that is, whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt.

95 We accept the applicant's submission that, if the jury was bound to reject the evidence of Witness A and Witness P, the jury would have been bound to acquit the applicant. Moreover, there were powerful reasons why the jury might not have accepted the evidence of either Witness A or Witness P. That said, the evidence of Witness A and the evidence of Witness P did not fall to be considered in a vacuum.

96 As the judge observed when sentencing the applicant, the evidence disclosed that the killing of Kinniburgh took place in the context of an ongoing violent conflict in the criminal underworld in Melbourne.[35] In one camp, there was Williams, Witness A, the applicant and Blewitt. In the other camp, there were the Morans and Kinniburgh. The evidence of Witness A and the evidence of Witness P fell to be assessed by the jury in the light of these background circumstances. It was also evidence that was to be evaluated by the jury in circumstances where there was no suggestion that Witness A and Witness P colluded in their evidence. Their evidence was broadly consistent in implicating the applicant in Kinniburgh's murder.

97 It may be accepted that there was, as was submitted by the applicant, no independent evidence of the applicant's involvement in Kinniburgh's murder. That proposition, however, does not gainsay the ability of the jury to accept the essential aspects of Witness A and Witness P's evidence. Similarly, the fact that some observations made by some of the witnesses who were present at the time of the shooting cannot be accepted if the evidence of Witness P is accepted (in particular the observational evidence that the driver of the getaway car was taller and younger than the applicant) does not mean that the jury was required to acquit the applicant. The jury was entitled to reject observational evidence, made by witnesses who were observing events that were occurring outside and at night, that was inconsistent with other evidence that was open to be accepted.

98 Likewise, while there is some force in the applicant's criticisms of the evidence of Witness A and Witness P, on the basis that particular parts of their evidence are contrary to known facts,[36] the criticisms identified by the applicant are not such as to have compelled the jury to reject the essential and critical aspects of their evidence concerning the arranging of the shooting and the carrying out of it.

99 Having reviewed the whole of the evidence of the trial, we are unable to conclude that it was not open to the jury to convict the applicant. As we have already said, while there were powerful arguments to be made in support of an acquittal, the issue was quintessentially a jury question to be determined by them on all of the evidence.

100 In our view, the reliability and credibility issues that were identified by the applicant make the question of whether the jury's verdict was unsafe or unsatisfactory sufficiently arguable to justify a grant of leave. We would, however, reject ground 1 on the basis that while the jury might have entertained a doubt about the applicant's guilt, it was not bound to do so.

101 We will grant leave to appeal. The appeal, however, will be dismissed.

[1] DPP v Asling (Sentence) [2017] VSC 191 ('Sentencing Reasons').

[2] The evidence at trial was that Blewitt was last seen in April 2004 before he disappeared. His body was found in 2016. This was not communicated to the jury.

[3] DPP v Asling (Ruling No 2) [2017] VSC 38 ('Ruling No 2').

[4] The applicant's case was also that another witness (Witness C) who implicated him was equally (if not more) unreliable than Witness A or Witness P. In view of the way the trial progressed, however, it is not necessary to say anything further about Witness C at this stage.

[6] Detective Sergeant Morse agreed with this in cross-examination.

[7] Referred later in his evidence to be the Taylors Lakes Tavern.

[8] Although in another part of his evidence, Witness P said Kinniburgh fired first.

[10] The judge also referred to other possible motives that the evidence disclosed that Witness P may have had to lie (the possibility of the receipt of reward money by Witness P, and the desire of Witness P to protect his family), but said that these were factual matters that the jury was well-capable of understanding.

[11] The evidence was that Jason Moran was killed on 21 June 2003.

[12] See s 276(1)(a) of the Criminal Procedure Act 2009.

[15] [2016] HCA 32; (2016) 259 CLR 47 ('Sio').

[16] Ibid [25]-[27] (citations omitted).

[18] (2016) 257 CLR 300 ('IMM').

[27] Having regard to the abandonment by the applicant of any complaint about the admission of representations 5 and 6, it is not necessary to set out the judge's treatment of those representations.

[29] Sio [2016] HCA 32; (2016) 259 CLR 47, 66-7 [65]-[66] (citations omitted).

[30] In Sio, that was by operation of s 165(1)(d) of the Evidence Act 1995 (NSW_)._

[31] See paragraph (c) of the definition of 'evidence of a kind that may be unreliable' in s 31. Section 31, (and s 32, which permits a party to request that an unreliable witness warning be given) came into operation at the same time as s 165 of the Evidence Act 2008 was amended so as to delete references to criminal proceedings. The nett effect is the same.

[32] See Sio [2016] HCA 32; (2016) 259 CLR 47, 68 [70] and 69 [73].

[34] See, eg, M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494-5; R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 629-30 [20]; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113]; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 329-30 [65]-[66].

[36] For example, the fact that Kinniburgh was shot in the street and not in his driveway; the fact that three shots were fired, not two; the lack of blackening or stippling in respect of the gunshots, suggesting that the shots were not fired 'point blank'; and Witness P's evidence as to when the Ford motor vehicle was stolen.