Awad v The Queen; Tambakakis v The Queen [2021] VSCA 285

CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Whether trial judge erred in characterising the applicants as senior members of an organisation - Application for leave to appeal refused.

CRIMINAL LAW - Appeal - Sentence - Extension of time - Whether sentence offends principle of parity having regard to co-offender's sentence and role played by co-offender - Application for extension of time not opposed - Application for leave to appeal refused.

1 Following a 26 day trial, on 12 September 2019 a jury empanelled in the County Court found the applicants Danny Awad and John Michael Tambakakis (for convenience, 'Awad' and 'Tambakakis') guilty of one charge of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, cocaine.[1] The jury were unable to agree on a verdict with respect to a co-accused, Charbel Kanati ('Kanati'). A fourth accused, Jacob Rohen ('Rohen') is yet to be tried.

2 On 12 November 2019, after a plea in mitigation conducted on 8 November 2019, the trial judge sentenced each of Awad and Tambakakis to 15 years' imprisonment, and fixed a non-parole period of 10 years.

3 Both Awad and Tambakakis seek leave to appeal against conviction and sentence.[2]

1 The learned trial judge erred in directing the jury that, in assessing and evaluating the evidence given by John Tambakakis, the jury should have regard to the significant 'factor' and consider the 'observation' that 'a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence', with the consequence that there has been a substantial miscarriage of justice.

2 The learned trial judge, in directing the jury concerning their assessment or evaluation of the evidence given by John Tambakakis, directed the jury in a manner prohibited by s 44J of the Jury Directions Act 2015 (Vic) and, as a consequence, there has been a substantial miscarriage of justice.

3 The verdict of the jury is unreasonable and/or cannot he supported having regard to the evidence.

PARTICULARS

(i) It was not open to the jury to find beyond reasonable doubt that the Applicant had entered or got into the Kia van (XHK 234) whilst parked at 11 King Street, Airport West, and then travelled in that Kia van with John Tambakakis to the warehouse at the rear of 27 Halsey Road, Airport West.

(ii) It was not open to the jury to reject (or exclude) beyond reasonable doubt a reasonable hypothesis consistent with the innocence of the Applicant, namely, the Applicant had not entered or got into the Kia van whilst parked at 11 King Street, Airport West and then travelled in that Kia van with John Tambakakis to the warehouse at the rear of 27 Halsey Road, Airport West, but had merely remained in King Street, Airport West.

5 Tambakakis also relied on three grounds with respect to conviction, albeit his counsel abandoned a number of 'particulars' initially pleaded.[3] The grounds as ultimately formulated were as follows:

2 A substantial miscarriage of justice arose from the prosecution's closing address, in which it:

2.1: Invited the jury to draw a conclusion that Jacob Rohen's palm print was deposited on a printer box at Randor Street on 9 May 2017;

...

3 A substantial miscarriage of justice resulted from the trial judge:

3.1: Directing the jury in a manner that was expressly prohibited by s 44J of the Jury Directions Act 2015 (Vic);

...

3.3: Not directing the jury that, as a matter of law, it was not open to embrace certain of the conclusions that had been urged by the prosecution in its closing address;

...

3.5: Directing the jury that the prosecution's case against the applicant was informed by the value of the consignment, without directing the jury that there was no evidence that the applicant in fact knew that value;

3.6: Not providing a more balanced direction in relation to whether the evidence established the element that was in dispute to the criminal standard;

...

4 A substantial miscarriage of justice resulted from an aggregation of circumstances, including the:

4.1: Matters particularised under Grounds 2 and 3;

...

6 Tambakakis also sought leave to appeal against sentence on the basis that the sentencing judge mischaracterised his role in the offending, and because the sentence imposed is manifestly excessive; and Awad sought to contend that he should have received a lesser sentence than Tambakakis.

7 For the reasons that follow, I consider that both Awad's and Tambakakis' convictions must be set aside and a new trial ordered. There is thus no occasion to consider the applications touching sentence.

8 So as to understand the issues raised concerning conviction, it is necessary to summarise the main aspects of the prosecution case.

9 The evidence revealed that on 1 May 2017 a consignment of five Xerox WorkCentre 3655 Multifunction Printers, addressed to Mark Hart, Overall Auto Care, 26 Charles Street, Coburg North, arrived in Melbourne from Mexico. Each printer was in a cardboard box. Three boxes had been placed on one pallet, and two boxes were placed on a second pallet.

10 Australian Border Force ('ABF') officers intercepted and examined the consignment. Contained within it was 22.4 kilograms of cocaine, 15.456 kilograms of which was pure cocaine (a purity of 69 per cent). A commercial quantity of cocaine is two kilograms.[4]

11 The consignment was then deconstructed by Australian Federal Police ('AFP') officers. An inert substance was substituted for the cocaine. Additionally, both a listening device and a tracking device were placed within the consignment. A 'controlled delivery' of the consignment containing the inert substance was then conducted by police during the afternoon of 8 May 2017.

12 Rohen accepted delivery of the consignment at the Overall Auto Care premises at 28 Charles Street, Coburg North - 'Overall Panels' was located at 26 Charles Street - introducing himself as 'Mark Hart'.

13 Later that day, Tambakakis, who operated a business, 'GT Skips', collected the consignment and transported it on the back of a 'skip' truck to his business premises at 16 Patrick Street, Campbellfield. Subsequently, the consignment was transported on the back of the skip truck to a yard at 29 Randor Street, Campbellfield, which was also used by Tambakakis in connection with his GT Skips business. Tambakakis kept the yard secured with a chain and combination lock. The consignment was then left in the open air at the Randor Street yard until the early evening on 9 May 2017.

14 During the evening of 8 May 2017 - that is, the day the consignment was placed in the yard - Tambakakis was observed driving a black Jeep (registration ZXA 366) slowly in Randor Street. That same evening, Awad's car, a black BMW (registration VAN 254), was observed in the vicinity.

15 On the next evening, 9 May 2017, at 6.19 pm, the consignment was collected from the Randor Street yard. It was placed in a 'Budget' rental truck which had been hired by Rohen shortly beforehand. The consignment was then transported in the Budget rental truck to Kanati's residence at 97 Shaftsbury Street, Coburg. Awad's car was observed in Cooper Street, Campbellfield, a little before that occurred.

16 Earlier in the afternoon of 9 May 2017, surveillance officers had observed Awad driving a short distance from his work in Nicholson Street, Brunswick, to Fleming Park in Brunswick. He met a man driving a white BMW, registration AEG 828, which was registered to Rohen. The two men walked three or four laps of the oval while talking. (As I will discuss, the white BMW was next seen in Shaftsbury Street, Coburg, on the next afternoon.)

17 The next day, 10 May 2017, at 5.22 pm, Tambakakis drove a white Kia van (registration XHK 234) to Kanati's residence in Shaftsbury Street and left it there. Tambakakis was then picked up by Awad, and driven away from Kanati's residence in Awad's car. They then went to Tambakakis's apartment in Breese Street, Brunswick.

18 A few minutes later, at 5.26 pm, Kanati left his premises in the Kia van with the consignment on board. Earlier that afternoon, the white BMW, registration AEG 828, which had been observed in the vicinity of Fleming Park the day before, had been seen driving up and down Shaftsbury Street, while Kanati periodically came out of his house to speak with the driver. When the Kia van left Kanati's residence with the consignment at 5.26 pm, the white BMW drove in convoy with the van to King Street, Airport West. The BMW then parked in King Street facing the van, with its headlights on.

19 At some point shortly afterwards, Tambakakis and Awad arrived at the 'Autobarn' carpark in Matthews Avenue, Airport West. CCTV footage played at trial showed Tambakakis and Awad leaving the Autobarn carpark on foot at 6.07 pm and walking together west on King Street. Awad's car was seen parked in the Autobarn carpark minutes later, at 6.15 pm.

20 Kanati, who had left his premises in Coburg at 5.26 pm, had in the meantime parked the Kia van on the northern side of King Street, Airport West, adjacent to number 88, at 5.53 pm (that is, about a quarter of an hour prior to Tambakakis and Awad leaving the Autobarn carpark on foot).

21 At 6.13 pm, Kanati drove the Kia van east along King Street. It went past Tambakakis and Awad, who then headed west on King Street. The two were not, however, walking together. Tambakakis was walking on the southern side of the street and Awad walking on the northern side.

22 About five minutes later, at 6.18 pm, Kanati did a U-turn to face west, and parked the Kia van on the southern side of King Street, outside number 11. An unidentified male then walked to, and entered, the Kia van.

23 The Kia van was then driven west along King Street at 6.25 pm. Its journey ended at 6.29 pm, when it was driven into a warehouse at the rear of 27 Halsey Road, Airport West, where the consignment was then unloaded. Tambakakis had earlier leased the warehouse under a false name.

24 I pause to note that the prosecution case was that Awad and Tambakakis had entered the Kia van outside 11 King Street at 6.25 pm, and had travelled in it to the warehouse in Halsey Road, where they helped unload the consignment before exiting at 6.55 pm. Tambakakis gave evidence at trial, however, that although the plan was for both he and Awad to enter the van and go to the warehouse, ultimately Awad did not get into the van. Significantly, although a listening device installed in the consignment recorded the voices of two people in conversation inside the Kia van, no voice identification evidence was offered at trial. Also significantly, neither Awad nor Tambakakis were again captured by CCTV footage until after the van had left the warehouse around 6.55 pm.

25 I pause further to note that the prosecution case against Awad was that he was in possession of the substance inside the consignment from the time he got into the Kia van with Tambakakis outside 11 King Street at 6.25 pm and was driven to the warehouse at 27 Halsey Road, until he exited the warehouse at 6.55 pm. During that period he was alleged to be in joint possession of the substance with Tambakakis. On the other hand, the prosecution case against Tambakakis was that he was in possession of the consignment from the time he collected it at Overall Auto Care, had it loaded onto his skip truck and drove to the yard at Randor Street, until he unloaded the consignment from the Kia van in the warehouse at 27 Halsey Road.

26 The prosecution alleged that, between 6.32 pm and 6.55 pm, Awad and Tambakakis unloaded the consignment. It was alleged that they also scanned it for surveillance devices using a 'Hawk Sweep' scanner. The prosecution contended that the listening device installed in the consignment recorded the noise of the scanner, the sounds of plastic and paper tearing, and snippets of conversation between two males. It was alleged that such of the conversation as can be heard indicates that Awad and Tambakakis were aware that the consignment might be the subject of electronic monitoring by law enforcement.

27 Resuming the narrative, at 6.55 pm Tambakakis drove the Kia van - no longer containing the consignment - out of the warehouse and parked it in a carpark at 22 King Street.

28 At 7.02 pm, Tambakakis and Awad were seen to walk back to the Autobarn carpark in Mathews Avenue. They then got into Awad's car and drove away.

29 An hour later, at 8.02 pm, Tambakakis and Awad were arrested in Awad's car at Essendon Fields. The car was searched. In the glove box was a Hawk Sweep electronic scanner. On the back seat was a backpack containing a 'Sunbeam Food Saver' vacuum sealer and multiple plastic vacuum seal bags. Significantly, in the cup holder on the passenger side was a key to the Kia van. Two of Awad's fingerprints were subsequently located on the vacuum sealer. His fingerprints were not, however, located on the other items.

30 Subsequently, at 10.55 pm, investigators found the consignment in the Halsey Road warehouse. Four of the five cardboard boxes had not been opened. One box had been unpacked and the printer removed. The paper trays had been taken out from the printer and the substituted package had been removed from the paper tray and taken to the kitchenette. That package had been cut open and surveillance equipment removed from it.

31 The outside of each of the five boxes was subjected to a process to detect latent fingerprints. Kanati's fingerprints were located on two unopened boxes. The left palm print of Rohen was located on the top of one unopened box. Other prints were located on the boxes, but none were matched to Awad.

32 Various items, including the hard case for the Hawk Sweep scanner and digital scales, were seized from inside the Halsey Road warehouse and subjected to DNA and fingerprint analysis. Although fingerprints were found, none were matched to Awad. Nor was his DNA located on any item.

33 The Kia van was also examined for fingerprints and swabs were taken for DNA analysis. Although fingerprints were found, and some DNA located, there was no match to Awad.

34 As I have indicated, Tambakakis gave evidence. In evidence-in-chief, he denied that he intended to possess cocaine. The thrust of his evidence was that at all relevant times he was acting at the behest of Marcus (or Mark) Edwards ('Edwards'), whom he believed to be in Thailand. Edwards directed him to do various things by way of text message on the 'Wickr' mobile telephone application. Tambakakis asserted throughout that he thought the 'shipment' contained 'Steroid tablets'. Had he known there was cocaine, he 'wouldn't have been involved'.

35 Tambakakis told the jury that he had discussed steroids - which he used - with Edwards, who was his personal trainer. He said that he had wanted to start a recycled clothing business with Edwards at the Halsey Road premises. The idea was to get collection bins manufactured, collect donated clothes, clean them, and then export them. Tambakakis said he signed the lease of the premises in a false name because he had a 'credit default' on his record. When he and Edwards struggled to 'get the money together' to pay for the bins, Edwards suggested that they 'needed to find other ways to make some money', and they 'started talking about distributing steroids' which Edwards was going to source from overseas.

36 A month or two later, Tambakakis said, Edwards 'received a shipment of ... large terracotta pots or vases type things and they had steroids inside'. They took the pots to the Halsey Road warehouse in a rented van, took them out of the van, broke the tops of them open and 'took out the little bags of steroids'. They laid the four different types of steroids out on a table - they were different colours - and then waited for packaging to arrive so that the steroids could be vacuum-sealed to 'preserve the freshness and so they don't roll around and deteriorate'. A couple of weeks later, Edwards called him and told him that the packaging had arrived. Tambakakis went to the warehouse with Edwards the following night. There was 'a dozen or so big boxes of white bottles' and they 'packaged up maybe 1000, 1500 bottles'. They repackaged 'at least' five kilograms of steroids.

37 Tambakakis told the jury that he went to Overall Auto Care on 8 May 2017 as a favour to Edwards - whom he believed to be in Thailand - who asked him to pick up some boxes that were on pallets. Edwards told him that the boxes contained 'gear', which is street slang for steroid tablets. He loaded the boxes onto the back of a skip truck with an 'old fella' who 'grabbed a forklift'. Tambakakis saw Rohen there but they did not speak. Edwards had told Tambakakis that he would let him know what to do with the boxes, and had said that he would give him 'two and a half grand for an hour's work'. The boxes were transported to Randor Street.

38 When Edwards later contacted him, Tambakakis said, Edwards was 'pretty upset' that he had left the boxes 'out in the open', because they were 'worth a stack' (although he did not tell him 'exactly what amount' was involved). Tambakakis told Edwards he did not 'want to be driving around' with steroids anymore and 'wanted it off the property'. Tambakakis' evidence included that he drove around the streets near his yard in the evening of 8 May 2017 checking parked cars, including by illuminating them with his headlights. He did so because Edwards said the consignment was 'worth a stack' and wanted to check if it was 'off' (that is, whether law enforcement was aware of it).

39 I pause to note that, in cross-examination by the lead prosecutor, Tambakakis agreed that he met Awad in the evening of 8 May 2017, 'somewhere between 6.30 and 8.00 pm', at a kebab shop at 'Fordgate shops'. Tambakakis said that it was 'just a social meeting', to 'catch up for a bite to eat'. During the meeting, he asked Awad whether his friend still wanted some 'gear tabs'. Tambakakis said that the arrangement was that Awad would first receive sample bottles of steroids to give to his friend, and, if his friend was happy, he would buy 'a few, like more than a dozen'.

40 Returning to his evidence-in-chief, on 9 May 2017, Tambakakis said, Edwards asked for a loan of the Kia van. At Edwards' direction, Tambakakis said, he drove it to Kanati's residence in Shaftsbury Avenue. Awad, who 'was keen to get his hand on some samples of the steroids', picked him up. He had earlier told Awad that they could pick up some steroids together, and he had asked Awad to 'get a set of scales and a cryovac machine'. Awad had not brought scales, Tambakakis said, so they went to his residence, where he obtained scales and gloves to package steroids. They then drove to Autobarn in Airport West.

41 Tambakakis gave evidence that Edwards had told him that the van with the steroids would be waiting at the top of King Street. Since it was not where Edwards had said it would be, he and Awad starting walking to the other end of King Street. The van then drove straight past them, so they turned around and walked back to the original meeting spot at the top of King Street. When they got to the van it was parked on the opposite side of the street, so Tambakakis crossed the road first and Awad 'hung back a bit'. Rohen then jumped out of the driver's seat, walked around the front of the van, opened the sliding door and 'started mucking around' with the scanner. Tambakakis' evidence was that Rohen told him to 'stand back'. Awad was still on the other side of the street. There was then the following critical passage of evidence:[5]

[COUNSEL]: What happened then?---Well, Rohen was scanning inside and then I walked around to the, to the driver's side of the van and I grabbed Danny's [Awad's] backpack off him and put that in the van and then I jumped in the driver's seat.

Did Danny [Awad] get in the van?---No, Danny didn't, never got in the van.

Why didn't he get in the van?---Danny was concerned that if Mark [Edwards] didn't want his boys to, to know where the warehouse was then he wouldn't want Danny to know where the warehouse was.

...

So you're there and Danny doesn't get in the van?---No. I told Danny to just wait, I'll be back in 10 minutes.

Why did you take his backpack?---The first time I'd packaged up steroids with Mark we used the cryovac machine to, to store them, so I thought I'd need one.

So what happened then?---Then Rohen jumps in the passenger seat and we drove to the warehouse.

We know from the listening device that somebody says in relation to the front seat something like, 'How little is this cunt?' or something like that. Who said that?---I said that.

What were you referring to?---The van seat being pretty far forward.

Did you see Mr Kanati at this time?---I did not see Mr Kanati.

So you drove the van with Mr Rohen?---Yes.

You went to the factory?---Yep.

42 I pause once more to note that the passage of evidence extracted immediately above was of crucial significance to Awad's case, given the very narrow way in which the prosecution chose to put its case against him. As will be appreciated, the prosecution did not charge a conspiracy against Awad and Tambakakis. And very significantly, the prosecution deliberately eschewed any reliance on either the principles of complicity or those of joint commission provided for in ss 11.2 and 11.2A of the Criminal Code (Cth). Instead, the prosecution posited that Awad was in joint possession of the cocaine with Tambakakis only from the moment he allegedly got into the Kia van with Tambakakis in King Street until he allegedly exited the warehouse at 6.55 pm. If Awad did not enter the van, he did not attempt to possess the illicit drugs. Thus if, in light of Tambakakis' evidence, the jury entertained a reasonable doubt about whether Awad entered the van, the prosecution case against him had to fail.

43 It should also be noted at this juncture that the prosecution placed considerable reliance on parts of a conversation recorded by a listening device secreted within the consignment. Tambakakis' evidence was, as I have said, that on approaching the van he saw Rohen get out of the driver's seat and use an electronic scanner. The prosecution contended that, at about the time Tambakakis and Awad approached the van, the listening device captured two male voices and the sound of a scanner in operation. A few minutes later, after the van doors are heard to open and close, a male is heard saying, 'How little is this cunt?'. Another male responds, 'Huh? What?', and the first male repeats, 'How little is he?'. The prosecution alleged that Tambakakis was speaking to Awad, and was commenting on the short stature of the previous driver, who was Rohen. In cross-examination, Tambakakis admitted that he was commenting on the short stature of the previous driver, but maintained that he was talking to Rohen. The prosecutor cross-examined him as to why he would be referring to the driver in the third person when talking to Rohen, when Rohen on his version was that driver.

44 Returning to Tambakakis' evidence, he said that when he and Rohen got to the factory he gave Rohen the key to open the padlock, and he got into the driver's seat. Sam - a friend of Edwards' Tambakakis knew only as 'Sam' - was already inside the factory, so he opened the roller door. Tambakakis was 'a little bit surprised' to see Sam there, but he knew that Edwards would have been in contact and that Sam would have been there to help. After Tambakakis drove the van into the factory, Sam closed the roller door. Rohen then put the padlock into the back of the van. Shortly afterwards, Tambakakis saw that 'Sam and Rohen were scanning the boxes in the van'. The scanner was not his, and he did not see Awad with one.

45 Tambakakis said that Sam then asked him and Rohen 'to help move the boxes out of the van'. After a few minutes Sam opened one of the boxes. A little later, Tambakakis saw Sam walking towards the kitchenette with what looked like a 'pack of paper that was wrapped in tape'. Sam then came out of the kitchenette 'pretty frantic and freaked out', and said, 'It's off, let's get the fuck out of here'. Tambakakis then opened the roller door, 'jumped into the van' and they 'got out of there pretty quick'. Rohen was in the back and 'Sam jumped in the passenger seat'. They jumped out 'probably 30 seconds or so' after Tambakakis turned down Massey Avenue. Tambakakis then gave the following evidence:

What did you do then?---And then I kept driving it back to King Street and turned right into King Street.

And what happened then?---I had arranged for Danny [Awad] to wait there for me anyway so I turned the street and I saw him on the right hand side of the road and I drove past him and then pulled over and then he came up to the van and we then parked it and then we left.

Did Danny get in the van?--I don't think so. I think he opened the door but I just drove forward a little bit and then we jumped out.

Where did you end up parking?---At 22 King Street.

What happened then?---Then I told Danny what was going on and we grabbed out whatever was in the van and then started walking back to his car.

We know from video that when he's going back towards the Auto Barn he has his backpack on and you had no bag?---Yes, when he came up to the van I just pretty much threw the bag at him and said, 'Grab this. Let's get out of here'.

What happened then?---Then we walked back to the Autobarn car park and jumped in Danny's BMW.

... Tell the jury how it came about that the scanner found its way into the BMW?---I took the scanner from the van to the BMW.

Who put the scanner in the van?---Rohen must have had the scanner in the van.

Do you know why you took the scanner and put it in the BMW?---I just grabbed it. I was pretty frantic so I just grabbed whatever was there and got out of the van.

I take it by the stage when you left the factory must have realised that there were listening bugs or tracking bugs in the shipment?---Yeah, and I was pretty panicked, freaked out by it.

46 Tambakakis' evidence-in-chief concluded with him saying that Awad's purpose in meeting him was 'the steroid tablets'. He said he absolutely 'would [not] have become involved in any of this' if he had had 'any idea that there may have been cocaine in this shipment'.

47 Apart from those aspects previously referred to, it is unnecessary to set out much of Tambakakis' cross-examination by the prosecutor. The final passage is sufficient to provide its general theme:[6]

[PROSECUTOR]: I put to you before, Mr Tambakakis, that you and Mr Awad were the only people at the warehouse on that night?---That's not correct.

You knew about this shipment of printers well before he arrived?---That's also incorrect.

You knew where it was going to go, that is, Overall Auto Care?---No, I didn't. If I had known, why would I have gone there in a work truck and taken it back to my work?

By that stage, Mr Tambakakis, someone else using a false name had already collected the consignment and signed for it without apparent incident?---I didn't have any understanding of that at the time at all.

I suggest you did?---I'm telling you that I didn't.

You knew that someone would pose at Mark Hart making phone calls to DHL?---I wasn't aware of any of that.

I suggest the information deriving from those phone calls was passed onto you?---That's not correct. I wasn't aware of any of that goings on prior to me getting to 26 Charles Street. I had no idea of any of that, those conversations.

You didn't want to be yourself in possession of this consignment for the entire time?---Not the entire time. I picked it up in a work truck with my phone number printed across the back of the truck from - - -

And having taken it back to your yard you wanted to monitor law enforcement interest in it?---I was asked to, yes.

You also knew that someone would store the printers overnight on 9 May?---I was told that they would be picked up from the yard as soon as possible.

You knew there were others involved in this whole enterprise, didn't you?---Yes, there were others involved.

You knew there were other vehicles in a position to monitor what was going on?---I wasn't aware of any other vehicles.

A white BMW that we've heard about during this trial?---I had no contact with that white BMW or its driver.

So you had no idea before you saw the evidence of that vehicle's behaviour?---I had no idea until I saw the evidence.

When you collected this consignment at Overall Auto Care you knew it wasn't just printers, didn't you?---I knew that I contained steroid tablets. I believed it contained steroid tablets because I was told it contained steroid tablets.

I suggest you knew it contained cocaine?---That's incorrect. I believed it contained steroid tablets.

And at the time you first took delivery of it at Overall Auto Care you intended to possess that cocaine?---In my work truck I went to 26 Charles Street to pick up steroid tablets.

And that your plan was to watch and wait for a couple of days?---No, not at all.

Before you brought it to a warehouse that had been leased to you in a false name?---I didn't know that there was cocaine secreted in those boxes until I was arrested by police and informed that cocaine had been previously in those printers.

I'm suggesting to you that you deliberately unloaded it there because it was a safer place and couldn't be easily traced to you?---That's not the case, no, sorry.

I also put to you that this was done as part of a plan you had with Danny Awad?---That's also incorrect.

That you had discussed with him this plan before the consignment arrived?---We had discussed steroid tablets after the consignment arrived.

I suggest to you that your meeting with him on 8 May was about a shipment of cocaine, not a shipment of steroids?---That's incorrect. It was about steroids and steroids alone.

And that his presence in Campbellfield on 9 May was not because you asked to meet him but you were aware that he was there and it was to do with this consignment which was in your yard at the time?---I didn't see my phone and I missed meeting him on the 9th.

And on the 10th you'd agreed with him to pick you up and that you would both go to King Street together, get in the van, drive to the warehouse and unload and repack the cocaine?---We believed that it was steroids at that point.

And your plan was to sell it?---The steroids?

The cocaine?---We believed it was steroids.

48 Although parts of the cross-examination extracted above were directed to the proposition that Tambakakis and Awad acted pursuant to a 'plan', that suggestion must be viewed in the narrow light of how the prosecution put its case. The prosecution had not charged a conspiracy involving the two under s 11.5 of the Criminal Code (Cth). Moreover - and risking repetition - the prosecution deliberately eschewed reliance on principles of complicity or joint commission.

The judge's directions about Tambakakis' evidence and the exceptions to it

49 Both Tambakakis and Awad impugned the trial judge's directions in his charge to the jury with respect to Tambakakis' evidence. In particular, it was contended that the judge erred in directing the jury that they 'should consider' the observation that 'a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence'.

50 In order to evaluate the criticisms levelled at the directions, it is necessary to set them out in context:[7]

Now, I have already pointed out to you that Mr Tambakakis gave evidence in the case and the accused of course is entitled to do so. Mr Tambakakis chose to give evidence in his own defence, he did not have to do that. An accused person has the right to remain silent in court, they are not a compellable witness, he cannot be compelled to give evidence. So, he chose to. In choosing to give evidence, Mr Tambakakis undertook to tell the truth, and he also submitted himself to cross-examination which is the way lawyers test a witness' credibility and truthfulness, and he was cross-examined over an extensive period of time by [the prosecutor].

Now, there are two factors that are significant that you should have regard to when you are assessing Mr Tambakakis' evidence. Firstly, in a criminal trial, there is nothing more than an innocent [person] can do than give evidence in his own defence and subject himself to cross-examination, and that is what occurred here. On the other hand, secondly, a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence. You should consider both of these observations when evaluating Mr Tambakakis' evidence.

In the end, it is for you to determine whether or not you accept it and what weight you give to it. In making this determination, you should treat the accused's evidence in exactly the same way as you would treat the evidence of any other witness. However, you must bear in mind, ladies and gentlemen, that an accused giving evidence in his own defence is probably under more stress than any other witness giving evidence in a trial. And if you were assessing Mr Tambakakis' demeanour, which of course you would have been when he gave his evidence, have regard to that fact.

And he did say himself that he was under some pressure, and I think I might have said to him, you know, it is not for him to make speeches, and of course that is true. You did not need him to tell you that he would be under stress, of course an accused person giving evidence in a criminal trial, a complex criminal trial, would be under stress. So, have regard to that when you are considering his evidence in the case. It is also essential, and this is very important in this case, ladies and gentlemen, that it is for the prosecution to prove its case beyond reasonable doubt.

It is not for Mr Tambakakis to prove his innocence. Now, this has not changed simply because he has decided to give evidence. This means that you must not find him guilty if you reject his evidence, if you decide to reject his evidence. If you say to yourselves, 'We do not believe a word of what he said', you would simply put that to one side, or, 'We do not believe Mr Tambakakis on important factual issues and therefore we are not prepared to act on his evidence', all of it, simply because you think on particular topics you do not accept it and you think that his evidence is unreliable, or untruthful, one or the other, or both.

If you arrive at those conclusions, and I am not suggesting you should one way or the other, it is entirely a matter for you by reference to all of the evidence in the case, but if you do arrive at that conclusion, then you simply put his evidence to one side and you then consider whether or not the prosecution has proved its case beyond reasonable doubt against him. Now, as I say, it is essential that you understand that. It would be perfectly open to you to say, 'Well, we don't believe a word of what Mr Tambakakis has said, and his evidence is unreliable. But we're not satisfied that the prosecution has proved its case beyond reasonable doubt'.

The burden of proof remains on the prosecution irrespective of what you make of Mr Tambakakis' evidence. Of course, however, if you do accept Mr Tambakakis' evidence, you do not have to be satisfied of its truth beyond reasonable doubt. If you are satisfied that the evidence of Mr Tambakakis, that is, his evidence as to what took place, is reasonably possible, then you would have a reasonable doubt as to his guilt and you would find him not guilty.

51 The challenged directions were given in the afternoon of 9 September 2019. At the end of that day - the judge's charge had not been completed and was to resume the next day - counsel for Tambakakis raised with the judge the fact the directions were 'prohibited' by s 44J of the Jury Directions Act 2015 ('JDA'). There was then the following exchange:[8]

[COUNSEL]: But it concerns me if it is an error, how Your Honour could correct it, without highlighting the issue.

HIS HONOUR: Well I'll just simply tell them that those observations were - well I can correct it. I'm sure I can correct it. That the direction I gave them was straight out of the charge book.[[9]] Obviously, it's been changed.

[COUNSEL]: Your Honour, honestly, I had no idea, but - - -

HIS HONOUR: Well it must have been.

[COUNSEL]: It must have been. I can only read from the section from the Act.

52 There was then further discussion, until counsel for Tambakakis returned to the subject:

[COUNSEL]: Your Honour, could I just finish? I really - if Your Honour has made an error, Your Honour's made an error. It is my submission that if it is an error and Your Honour tries to correct it, it is only going to highlight the direction to a jury. So if there's damage done, there's damage done.

HIS HONOUR: So say nothing?

[COUNSEL]: So it's better to say nothing.

HIS HONOUR: I'm not sure about that.

[COUNSEL]: Because - - -

HIS HONOUR: Well that's what you would prefer?

[COUNSEL]: That's what I would prefer. Well I'm only thinking about it now with, you know, sort of ten minutes notice.

HIS HONOUR: All right.

[COUNSEL]: But it concerns me.

HIS HONOUR: Yes of course.

[COUNSEL]: And I would like to form a considered view with my junior overnight.

HIS HONOUR: All right. As I say, I was reading from the charge book of - but I've - obviously the charge book must have been updated ...

53 When asked for his submissions on the matter, the prosecutor said he agreed with counsel for Tambakakis that it would be 'better' if it was 'simply left alone'.

54 Before the charge resumed the following day, 10 September 2019, junior counsel for Tambakakis told the judge that they 'don't want that issue revisited', but asked the judge to give some further directions about Tambakakis' evidence when dealing with the elements of the offence.

Section 44J(b) of the Jury Directions Act 2015 and the impugned direction

55 Awad's conviction grounds 1 and 2, and Tambakakis' conviction ground 3.1, are concerned with s 44J of the JDA, which contains a legislative prohibition against the impugned direction.

56 Sections 44H to 44K of the JDA are located in Division 9 of Part 4 - headed 'Accused giving evidence, interest in outcome of trial' - which was inserted into the Act by the Jury Directions and Other Acts Amendment Act 2017 ('the amending Act'), with operation from 1 October 2017. Importantly, ss 44J and 44K are in the following terms:[10]

44J Prohibited directions in relation to evidence of an accused

The trial judge must not direct the jury about any of the following matters in relation to the evidence of an accused -

(a) whether the accused is under more stress than any other witness;

(b) that the accused gave evidence because -

(i) a guilty person who gives evidence will more likely be believed; or

(ii) an innocent person can do nothing more than give evidence.

...

44K Abolition of common law rules

(1) Any rule of common law under which a trial judge is prohibited from directing the jury on the interest a witness or an accused may have in the outcome of a trial is abolished.

(2) Any rule of common law under which a trial judge is required or permitted to direct the jury about the matters referred to in section 44J in relation to the evidence of an accused is abolished.

...

57 By its terms, s 44J(b)(i) makes it clear that, in relation to evidence given by the accused, a trial judge must not direct the jury that the accused gave evidence because a guilty person who gives evidence will more likely be believed. And s 44K(2) emphasises that any rule of the common law that might have permitted such a direction is abolished.

The common law prior to the enactment of s 44J

58 In Brown,[11] a case of importing a commercial quantity of a border controlled drug, the trial judge had given directions mirroring the directions impugned in the present case. The directions were:[12]

Bear in mind that when assessing his evidence, that a guilty person might make a decision to try and tough out cross-examination in the hope that it would be more likely to be believed [if] he takes the risk of giving evidence [than] if he dodges cross-examination. On the other hand in a criminal trial, there is nothing more that an innocent person can do, other than give evidence and subject himself to cross-examination. And you should consider both of those comments when you evaluate his evidence. ...

59 This Court observed that, at the time that they were given, directions of the kind impugned in this case were regarded as 'orthodox':[13]

Directions such as those in the emphasised portions of the charge extracted immediately above are now prohibited by s 44J(b) of the Jury Directions Act 2015.[14] The applicant's trial was, however, conducted prior to the amendments to the Act effected by the Jury Directions and Other Acts Amendment Act 2017 (with operation from 1 October 2017) - which inserted ss 44H to 44K - and at a time when it was a 'standard direction' to tell a jury that 'while an accused can do no more than get into the witness box and give evidence, it is always possible that a guilty person may decide to brazen it out in the witness box in the hope that he or she will be more likely to be believed by taking the risk of cross-examination than by dodging it'.[15]

At the time that they were given, the impugned directions were orthodox. That they were not seen to be prejudicial to the applicant may be gleaned from the fact that senior counsel took no exception and sought no redirection. ...

60 The applicant in Brown sought special leave to the High Court from this Court's decision, contending that the relevant direction - which Bell J observed in argument 'was a bespoke direction given in Victoria and not in any other jurisdiction' - was 'deeply wrong in a readily demonstrable way', and 'deeply and fundamentally wrong and ... indefensible'. Ultimately, special leave was refused.[16] Of course, that refusal of special leave creates no precedent and is binding on no one.[17] It certainly cannot be interpreted as a judicial endorsement by the High Court of the direction.

61 That the challenged direction was regularly given in trials in this State is reflected in a number of decisions.

62 By way of example, Haggag[18] involved the unsuccessful attack on the trial judge's apparent endorsement of the trial prosecutor's submission to the jury that the accused's evidence should be evaluated on the basis that he had the 'motive of self-survival'. Callaway JA (with whom Phillips CJ and Kenny JA agreed) discussed Robinson,[19] Stafford[20] and Ramey[21]_ - _ which make it plain that it is a misdirection to instruct a jury to evaluate the accused's evidence in light of his or her interest in the outcome of the trial - and referred to an article by Jeremy Gans discussing the relevant authorities,[22] and observed:[23]

It is unnecessary to decide whether the rationale of the prohibition against a direction, including a judicial invitation, to evaluate the evidence of an accused person in the light of his or her interest in the outcome of the trial is that it discriminates against the accused or that it undermines the presumption of innocence. They may be complementary rationales, each deriving from the unique position of the accused at a criminal trial. It is sufficient in the present case to concentrate on the presumption of innocence, to which express reference was made in the joint judgment in Robinson and which Mr Gans understands as the foundation of the rule. That is consistent with its formulation in both Stafford and Ramey and it is the way in which [the applicant's counsel] argued the case.

Approaching the matter in that way, there is a distinction between two quite different suggestions that might be made to a jury. The first suggestion is that, if the accused is guilty, he or she has a motive to lie. That does not assume that the accused is guilty. It simply makes one of the points that is made in the conventional comment that, whilst there is really no more that an innocent person can do than give sworn evidence and submit to cross-examination, a guilty person may choose to brazen it out in the witness box. The second, quite different, suggestion is that the accused has a motive to lie in order to secure an acquittal. Compare M (1997) 99 A Crim R 464 at 480-482. That undermines the presumption of innocence, because it assumes that the accused person is guilty: apart from exceptional cases, if he or she is not guilty, there is no motive to lie. It also invites the jury to engage in circular reasoning: (a) assume sub silentio that the accused is guilty; (b) use that assumption to discount his or her evidence; and (c) having discounted that evidence, find that the accused is guilty.

63 In Buckley,[24] Nettle JA observed that the 'standard direction' was

that while an accused can do no more than get into the witness box and give evidence, it is always possible that a guilty person may decide to brazen it out in the witness box in the hope that he or she will be more likely to be believed by taking the risk of cross-examination than by dodging it.

64 Quite apart from the authorities, however, it is the experience of the Court that, prior to the promulgation of s 44J(b) of the JDA, not every trial judge in this State gave the direction in issue,[25] since not every judge was satisfied that the direction was not offensive to principle. As is indicated above, it is not a direction that gained currency or approval in any jurisdiction outside Victoria.[26]

65 In the lead-up to the amending Act, the Department of Justice and Regulation (Criminal Law Review) produced a report - Jury Directions: A Jury-Centric Approach Part 2 ('the Report'), the 'purpose' of which was described as follows:

This report is designed to guide the interpretation and application of the proposed Jury Directions and Other Acts Amendment Bill 2017 (if enacted) by providing detailed information on how the reforms were developed, and their intent. It is intended as both an explanation of the reasons for the reforms, which may assist in the interpretation of the provisions, and as an informational resource following the commencement of the Bill, which is designed to assist courts and practitioners to be ready for the changes when they commence.

66 The Report characterised the directions abolished by s 44J(b) of the JDA as 'unhelpful' and 'problematic', and asserted the following:

The direction on assessing evidence (i.e. a guilty person may tough out cross-examination, but there's nothing more an innocent person may do) contains two competing propositions that arguably neutralise each other. The competing nature of the directions may confuse the jury and have the unintended consequence of focusing attention on the motivation of an accused to give particular evidence given their interest in the outcome of a trial. This direction appears to be unique to Victoria. For example, it does not appear in the model directions in Queensland, New South Wales, the United Kingdom or Canada.

67 Thereafter, in the Second Reading speech to the Jury Directions and Other Acts Amendment Bill 2017, the Attorney-General explained the reason for the insertion of these provisions:[27]

Directions on the accused giving evidence and interest in the outcome of the trial

The accused is not required to give evidence in a criminal trial. However, if an accused decides to give evidence, the common law may require the trial judge to give certain directions about that evidence that are confusing, unnecessary or inaccurate. These include a direction which provides that the jury should treat the accused's evidence in the same way as other witnesses, but that the accused is probably under more stress than any other witness.

On a related issue, the common law prohibits trial judges from directing the jury that an interest in the outcome of the trial is a factor to consider when assessing witnesses, including the accused. The rationale is that such a direction would undermine the presumption of innocence, because the accused always has an interest in the outcome of the trial. The prosecution is also prohibited from raising this issue. However, uncertainty as to the scope of this prohibition has led to appeals and retrials, while juries do not receive assistance on how to assess interest in the outcome of the trial.

The bill will clarify what can and cannot be said about both the evidence of an accused and interest in the outcome of a trial. For example, trial judges and parties will be prohibited from suggesting that an accused's evidence is less credible or requires more scrutiny than the evidence of other witnesses. However, consistent with other credibility directions in the Jury Directions Act, trial judges and the parties will continue to be able to comment on how a witness's or accused's particular interest in the outcome of the trial does or may affect their credibility. The bill will allow a trial judge to remind the jury that the accused is not required to give evidence and that the onus of proof has not changed because the accused gave evidence. The judge may also direct the jury to assess the evidence of the accused in the same way as any other witness. This will guide the jury on how to assess the accused's evidence fairly. The bill will also prohibit trial judges from giving certain problematic common law directions.

68 It would appear from the Second Reading speech that the directions abolished by s 44J(b) were seen by the legislature to be 'problematic'.

Awad's grounds 1 and 2: Direction breaching prohibition in s 44J

69 In my opinion, a direction that 'a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence' - to use the statutory language, 'the accused gave evidence because ... a guilty person who gives evidence will more likely be believed' - is indeed 'problematic', and very seriously so.

70 I consider that a direction of the kind under consideration has the potential both to undermine the presumption of innocence and the onus of proof. It fallaciously presents the jury with two stark alternatives - either the accused person is 'an innocent man' who can do no more 'than give evidence in his own defence and subject himself to cross-examination', or he is 'a guilty person' who has decided 'to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted'.

71 In my view, it is offensive to principle to confront the jury with those two categorical and mutually exclusive possibilities; that is, either the accused is 'innocent', or he or she is 'guilty' and brazening it out in the witness box. So much is, however, the practical effect of the impugned direction. Quite plainly, when considering the evidence of an accused person the jury is not required to determine whether he or she is 'innocent'. For a trial judge to offer an express or implied invitation to do so is fundamentally wrong. The issue for the jury must always be whether, based on all of the evidence - including the evidence of the accused - they have a reasonable doubt about his or her guilt. A direction of the kind under consideration deflects the jury from recognising and applying the requisite onus and standard of proof. The direction - whether regarded as direction of law or a comment on the facts - deflects the jury from recognising and applying the requisite onus and standard, and thereby from its fundamental task of deciding whether the prosecution has proved the guilt of the accused beyond reasonable doubt.[28]

72 Furthermore, by confronting the jury with two possibilities - and by necessary implication inviting the jury to choose one or the other - the impugned direction may operate as an invitation to disbelieve the accused. If the jury rejects the alternative that the accused is innocent, the jury will likely seize on the alternative: he or she is guilty and has cynically decided to tough it out in the hope that his or her bogus evidence will be believed. In effect, the direction strikes at the way in which an accused person's evidence is to be assessed, almost to the point of being a warning.

73 Whichever way one looks at the criticised direction, however, it is plain that it has the potential to invert the onus of proof and to undermine the presumption of innocence. It is thus somewhat curious - given that it is so fundamentally wrong - that it survived judicial scrutiny in this State for so long, until consigned to the ash heap of history by s 44J(b) of the JDA. There is now an unequivocal legislative command that a trial judge 'must not' give it. If it were not considered to be a misdirection beforehand - in my opinion, it quite plainly was - there can be no doubt that it must be considered to be so in light of s 44J(b) of the JDA. The question which must now be determined is: has the judge's unintentional flouting of the dictates of s 44J(b), by giving the abolished direction in relation to Tambakakis' evidence, produced a substantial miscarriage of justice in Awad's case?

74 Before turning to that question, I note that counsel for Awad submitted that the misdirection given by the trial judge meant that there had been a serious departure from the prescribed processes for the applicant's trial, sufficient in itself to constitute a 'substantial miscarriage of justice', requiring, without more, the conviction of the applicant to be set aside.

76 The 'proviso' which is found in the common form criminal appeal statutes applicable in other Australian jurisdictions was - as a response to Weiss[29] - deliberately omitted from s 276(1) when the Criminal Procedure Act 2009 was enacted. Putting aside the situation where the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, ss 276(1)(b) and (c) direct the Court of Appeal to allow an appeal against conviction if the appellant satisfies the court that, 'as the result of an error or an irregularity in, or in relation to, the trial', or 'for any other reason', there has been 'a substantial miscarriage of justice'.

77 In Baini,[30] the High Court made it clear that there is no single universally applicable definition of a 'substantial miscarriage of justice', since 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. The Court observed:[31]

No single universally applicable description can be given for what is a 'substantial miscarriage of justice' for the purposes of s 276(1)(b) and (c).[32] The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Secondly, there is the case 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. Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial.[33] This is not an exhaustive list. Whether there has been a 'substantial miscarriage of justice' ultimately requires a judgment to be made.

78 As I have said, I consider that the direction impugned in this case deflected the jury from recognising and applying the requisite onus of proof (and, in Tambakakis' case, undermined the presumption of innocence). Although the trial miscarried to that extent, however, in my view it cannot be concluded that 'the proceedings before the primary court have so far miscarried as hardly to be a trial at all', or that Awad was convicted 'after a proceeding which is fundamentally flawed', or that 'an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings'.[34]

79 Some guidance may be derived from Glennon,[35] albeit that the High Court was there concerned with the application of the proviso. In that case, the jury were misdirected on the 'applicants right to silence'. Mason CJ, Brennan and Toohey JJ held, however, that the misdirection was not 'so fundamental' that the trial was 'hardly a trial at all'.[36] It was observed that where the misdirection is not fundamental, the appellate court must be satisfied that, in the absence of the misdirection, 'the jury would inevitably have reached the same verdict'.[37] Although the misdirection impugned the applicant's credibility, so that, in the circumstances of the case, the proviso could not be applied, the majority did not accept 'the applicant's submissions that the proviso will never be applied where the misdirection goes to the accused's credibility'.[38]

80 A conclusion that the judge's misdirection did not amount to a serious departure from the prescribed processes of a trial does not, however, conclusively answer the question whether Awad suffered a substantial miscarriage of justice.

81 In theory, Tambakakis' affirmed evidence could be used both for and against Awad. As I have indicated, however, the importance of Tambakakis' evidence lay in the fact that it provided Awad with his essential 'defence'. The prosecution case against Awad was founded on the postulation that he entered the van containing the consignment in King Street, Airport West. From that moment on, so the prosecution alleged, Awad possessed the consignment with Tambakakis, and remained in possession of it until he subsequently left the warehouse in the van. Self-evidently, given the manner in which the prosecution put its case, in order to convict Awad the jury would have to be satisfied beyond reasonable doubt that Tambakakis' evidence was untrue. If the jury regarded Tambakakis' evidence that Awad did not enter the van to be truthful and accurate; or if the jury considered that Tambakakis' evidence could reasonably be truthful and accurate; or if the jury, based on Tambakakis' evidence, entertained a reasonable doubt as to that matter, Awad was entitled to an acquittal.

82 The facts of the present case are unusual, in that the misdirection did not undermine the credibility of any evidence given by Awad himself, but of another witness in the trial (albeit a co-accused). Given, however, the importance of Tambakakis' evidence to Awad's defence - it had the potential to exculpate him completely - a misdirection that was apt unfairly to taint the jury's consideration of that evidence cannot simply be ignored. Tambakakis' evidence was part of the overall pool of evidence which the jury had to consider and evaluate in order to determine whether the prosecution had established Awad's guilt beyond reasonable doubt.

83 I reject the submission of counsel leading for the respondent in this Court that the two 'comments'[39] in the directions 'balanced each other out and ultimately went nowhere', in the same way that I would reject the suggestion that the 'two competing propositions ... arguably neutralise each other'.[40] In my view, the misdirection denied Awad the benefit of the jury's proper consideration of the evidence which founded his essential 'defence'.[41] In circumstances where the judge gave the jury a direction prohibited by statute, that prohibited direction having the potential to undermine the jury's consideration and evaluation of crucial evidence, I am persuaded that there has been a substantial miscarriage of justice. I find myself unable to conclude that, absent the giving of the prohibited direction, Awad's conviction was inevitable.[42]

84 For these reasons, Awad's grounds 1 and 2 must succeed.

85 It is convenient to consider ground 3 after dealing with Tambakakis' case, since success on that ground would ordinarily result in Awad's acquittal.

Tambakakis' ground 3.1: Direction breaching prohibition in s 44J

86 Quite obviously, the direction given by the trial judge in breach of s 44J(b) of the JDA also had significant ramifications for Tambakakis' case at trial.

87 Tambakakis maintained throughout his evidence that he thought he was dealing with steroids, not cocaine. If the jury had a reasonable doubt as to the issue, acquittal had to follow. For the reasons discussed above, the misdirection by the judge had the potential to taint the jury's consideration and evaluation of his evidence, thereby undermining his defence. Not only did the misdirection deflect the jury from applying the requisite onus of proof, but it had the very real potential to undermine the presumption of innocence. In those circumstances, it is impossible to conclude that the delivery of the prohibited direction was not productive of a substantial miscarriage of justice.

88 For these reasons, Tambakakis' ground 3.1 must be upheld.

Tambakakis' grounds 2.1 and 3.3: Arguments concerning Rohen's palm print

89 Tambakakis' grounds 2.1 and 3.3 concern an argument put to the jury by counsel leading for the prosecution in his final address, which, so Tambakakis' counsel contended in this Court, was not corrected by the judge, thereby occasioning a miscarriage of justice.

90 The evidence revealed that Rohen's palm print was on one of the boxes in the consignment found by police in the Halsey Road warehouse at 10.55 pm on 10 May 2017.[43] That fact, Tambakakis' counsel contended, was devastating to the prosecution case. Given its location, the print was strong evidence of Rohen having had to have touched that box after the wrapping was removed, which strongly supported the contention - and Tambakakis' evidence - that Rohen was at the warehouse on 10 May 2017.

91 In his closing address, counsel for the prosecution invited the jury to infer that that print could have been placed on that box by Rohen unwrapping boxes at Randor Street on 9 May 2017, prior to putting them on the Budget truck.

92 Counsel for Tambakakis at trial, in his final address, argued that the prosecution case 'from beginning to end' had been that only Awad and Tambakakis had been at the warehouse. If Rohen was in the van with Tambakakis, that meant that his evidence must be true 'and that spells the end of the case for the prosecution against him'.

93 In this Court, Tambakakis' counsel submitted that it had not been part of the prosecution case that Rohen's palm print could have been deposited at Randor Street. The defence, it was submitted, were never put on notice, and were denied the opportunity to deal with the prosecuting counsel's speculation during the course of the evidence. Had the defence been put on notice, counsel could have pointed to the fact that the listening device in the consignment would have picked up the sound of unwrapping had any occurred at Randor Street on 9 May 2017.

94 It is noteworthy that, in the following passage of evidence, counsel for Kanati cross-examined the informant, Detective Senior Constable Melanie Castles-McKeown, on the topic of the consignment's unwrapping at Randor Street:

So, can I suggest to you in relation to the size and shape of the boxes, originally they were packaged in three and two?---Yes.

And that wrapping was, as I understand it, some of the wider wrapping was taken off at Randor and then pulled off?---That's my understanding. Yes.

Yes, but not all the wrapping was taken off there, the plastic we're talking about?---I don't believe so.

No, and was it a situation where the under wrapping that was still on, so there's the big hard plastic wrapping which was over the entirety of the two bundles, if you like, of two and three?---Yeah.

Some of that's taken off at Randor?---Yes.

And some more of it was found at my client's parents' house, where he lives with his mum and dad, in the bin behind the gates?---Yeah, so some of the wrappings, whether it came off at Randor or later, I don't know. Some of the wrappings were discovered at that address.

95 Self-evidently, for Rohen to have left a palm print, he must have touched the relevant box after the wrapping was removed. There was no direct evidence of when that occurred. Rohen did, however, drive the Budget Rental van on 9 May 2017, and used the van to collect the consignment from Randor Street, Campbellfield, before transporting it to Kanati's residence at Shaftsbury Street, Coburg, where it was unloaded.

96 Notably, Kanati's fingerprints were also found on two unopened boxes in the consignment when it was located by police in the Halsey Road warehouse late in the evening of 10 May 2017.[44] It was both Kanati's and the prosecution case, however, that Kanati at no point went to the warehouse. Accepting that to be so, the jury may well have reasoned that Kanati's fingerprints must have been deposited on the boxes when unloading or loading the consignment at Shaftsbury Street. In my view, it was open to the jury to infer that Rohen's palm print was deposited at the same time.

97 I consider that the argument advanced by counsel for the prosecution in the course of his final address as to when Rohen's palm print may have been deposited on the box was one that was open on the evidence.

98 In my view, the competing contentions were properly laid out by the judge for the jury's attention. So much is plain from the following passage of the charge:[45]

In support of the evidence of Mr Tambakakis in relation to Mr Rohen being the driver of the vehicle, considerable significance or weight is placed on the Rohen palm print which was located on the outside of one of the printer boxes. It's the prosecution case that Mr Rohen had two opportunities for that print to be deposited before the boxes left Mr Kanati's house. That's the prosecution case that that palm print of Mr Rohen's got on the boxes before they left Mr Kanati's house. Not in the warehouse. Those two opportunities relied upon by the prosecution are firstly, when the boxes were loaded into the van at Randor Street, that is, into the Budget van, you could infer from the evidence that you've heard that Mr Rohen was engaged in that. Because he rented the Budget truck for the obvious purpose of collecting the consignment. He met Mr Kanati and they unloaded them at Mr Kanati's house. So there are two opportunities on the prosecution case for that palm print to find its way onto the outside of the boxes.

Firstly, as I've said, when they were unloaded or loaded into the Budget truck at Randor Street, it being Mr Rohen who did that on the prosecution case. And then when they were unloaded at Shaftsbury Street.

It's the defence case that you could not safely infer that - put it another way, that it's not a reasonable inference that that's where the palm print on those two occasions, one or the other of them, is when the palm print was deposited on the outside of the boxes. What this involves is an examination, this issue, this factual issue - it involves an examination of when and to what extent at particular locations the boxes were unwrapped because it's accepted that the palm print of Mr Rohen could not be deposited on the outside of one of those boxes whilst they've got plastic on them. So obviously for that to happen the boxes must have been unwrapped.

It's the prosecution case that some unwrapping must have taken place at Randor Street. In answer to that the defence case is there's no evidence of that. There's no evidence of the location of any plastic at Randor Street and there's no obvious on the listening device that's in the boxes of unwrapping taking place at that time.

All right? So there's that body of evidence relied upon by the ... defence.

The defence also submit in support of that that when you look at the plastic in the rubbish bins at Mr Kanati's house, it couldn't have been all of the plastic. The boxes must have been unwrapped somewhere else because when you look at the content, how much plastic there is then it couldn't be all the plastic. And so, therefore, you can't exclude that the print was placed on the box at some other time.

And it's the defence case, of course, that what happened was Mr Rohen's palm print was deposited on the box in a warehouse when he was engaged in the unwrapping of the boxes. What you will need to do is also, therefore, consider the photos of the boxes in the warehouse. Some of them are unwrapped entirely. And some of them are partially unwrapped. There is some plastic there at the warehouse. So you need to examine the evidence that's relevant to that issue. All right? But that's an important piece of evidence relied upon in the case of Mr Awad to support [sic] Mr Tambakakis. That is, that Mr Rohen was the driver of the vehicle and he was the one that went to the warehouse, not Mr Awad. And that's the significance of that fingerprint.

99 In light of the foregoing, grounds 2.1 and 3.3 cannot be upheld.

Tambakakis' grounds 3.5 and 3.6: Consignment value and unbalanced direction

100 Senior counsel for Tambakakis orally argued grounds 3.5 and 3.6 together. Under cover of these grounds, counsel criticised the following part of the judge's charge:[46]

[T]he circumstantial evidence relied upon by the prosecution in the case of Mr Tambakakis is as follows.

Firstly, it's the prosecution case that he collected the consignment shortly after it was delivered to Overall Auto Care. A couple of hours later.

Secondly, it's the prosecution case that he arranged for it to be stored in Randor Street at The Block and, thereafter, took counter-surveillance activities in relation to it.

Thirdly, he met with Awad on 8 May 2017 to plan the collection of what was contained in the consignment.

Fourthly, he delivered himself the Kia van to Kanati's premises and in doing so demonstrated that he knew the consignment was there at the house. Now whether you draw that inference or not, is a matter for you by reference to the circumstances and all the evidence. But that's the way it's put.

Fifthly, he made arrangements for Awad to pick him up after he dropped off the Kia at Kanati's house.

Sixthly, that he, that is Mr Tambakakis, supplied scales, gloves and a scanner to be used in the unpacking of the border controlled substance, the cocaine.

Seventhly, he drove the Kia van to the warehouse.

Eight, he engaged in the unpacking of the boxes in the warehouse.

Nine, he fled following the discovery of the surveillance or listening device in the box that was unpacked.

Ten, the warehouse was rented by him in a false name.

Eleven, he was driving a vehicle with false plates on it to avoid police detection.

And finally, the value of the consignment was such that he must have known by reference to its value that it contained a border controlled drug, cocaine. It's not put, as I've said, that he was reckless as to that fact. It's knowledge in his case.

Now Mr Tambakakis gave evidence in this case and he stated that at all times until the package was opened in the warehouse by Sam, at all times, he believed that the consignment contained steroids and not - which is not, which are not, I should say, a border controlled drug.

Now, as I told you yesterday, Mr Tambakakis gave sworn evidence in his own defence. And there are four broad conclusions that you may reach about this evidence. And these are directions of law. If you think that his evidence is true, that is if you accept the truthfulness of Mr Tambakakis' evidence then you would find him not guilty because you would accept that he did not know that the consignment contained a border controlled drug, namely cocaine.

If you're not sure whether Mr Tambakakis' evidence is true but you think it might be, then you'll have a reasonable doubt about the prosecution's case. And, again, you would find him not guilty.

Similarly, if you merely prefer the evidence of the prosecution witnesses to Mr Tambakakis' evidence and his account, then you would also find him not guilty.

It's not sufficient for you to merely find the prosecution case to be preferable to the defence case. In other words, it's not a question for you of simply balancing one case against the other. As I said to you, at all times, you must - the prosecution, I should say, must establish Mr Tambakakis' guilt beyond reasonable doubt.

So, therefore, if you conclude that the account that Mr Tambakakis has given, that is, that at all times he believed, up until the box was opened in the warehouse by Sam, he believed it contained steroids. If you believe that it's reasonably possible that that's what he believed, then you would find him not guilty of the charge. Because you would have a reasonable doubt that he knew it contained a border controlled drug. In this case, cocaine.

As I explained to yesterday, if you reject Mr Tambakakis' evidence, simply put it to one side. If you're not satisfied of its truthfulness and reliability, you put it to one side. Simply because you reached that conclusion it does not mean that you therefore find him guilty. You still have to examine the case relied upon by the prosecution and be satisfied of the issue, the element in his case beyond reasonable doubt before you could find him guilty.

101 So far as the value of the consignment was concerned, Detective Sergeant Keith Randall had given evidence that the wholesale value of the consignment of cocaine was between $3.920 and $5.376 million. He also gave evidence in cross-examination that the wholesale value of steroids of roughly the same amount would be $391,072 (at 2014 prices).

102 Tambakakis' counsel submitted in this Court that there was no evidence that Tambakakis knew the value of the consignment. The jury ought to have been directed that there was no such evidence, as opposed to being invited to consider an impermissible line of reasoning. Moreover, the judge ought to have provided a more balanced direction in relation to whether the evidence established the element that was in dispute. Although the judge set out 12 propositions in support of the prosecution's circumstantial case, the judge referred only briefly to Tambakakis' evidence in support of the defence case, and did not refer to evidence that supported his account. A substantial miscarriage of justice resulted.

103 In my view, the emphasised portion of the charge set out above contains flawed logic. For Tambakakis to have known the value of the consignment, he would have had to have known that it contained cocaine. One could thus not reason from the value of the consignment that Tambakakis knew it contained cocaine. The flaw in the logic is so obvious, however, it is unlikely that the jury were misled, or otherwise set on a false path of reasoning.

104 A conclusion that a judge's charge lacks balance is usually a matter of impression, after a consideration of the charge as a whole. Having read the charge in its entirety, I do not consider there to be substance in the complaint that it was unbalanced. As the passages from the charge set out above illustrate,[47] the judge was - apart from the identified blemish - astute adequately to expose the defence case for the jury.

106 Given my conclusions on grounds 2.1, 3.3, 3.5 and 3.6, it is unnecessary to consider ground 4.

Awad's ground 3: Is the verdict unreasonable or unsupported by the evidence?

107 As earlier observed, the prosecution chose to put the case against Awad in a very narrow way.[48] The prosecution postulated that Awad was in possession of the cocaine substitute only from the moment he allegedly got into the Kia van with Tambakakis in King Street, Airport West, until he allegedly exited the warehouse in Halsey Road at 6.55 pm. If Awad did not get into the van, he did not attempt to possess cocaine. Therefore, if the jury entertained a reasonable doubt about whether Awad entered the van, the prosecution case against him had to fail. Put another way, in order to convict the jury needed to exclude beyond reasonable doubt the hypothesis that Awad had not entered the van, but had instead merely remained in King Street until again meeting up with Tambakakis upon his return in the Kia van at about 7.00 pm.

108 Since the prosecution relied on a variety of circumstances in an endeavour to place Awad in the van, resolution of the present ground must be approached in accordance with the principles applicable to a circumstantial case spelled out by the High Court in Baden-Clay:[49]

The principles concerning cases that turn upon circumstantial evidence are well settled.[50] In Barca v The Queen,[51] Gibbs, Stephen and Mason JJ said:

When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King.[52] To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen;[53] see also Thomas v The Queen.[54]

For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence'[55] (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence'[56] (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[57]

109 When, for the purposes of s 276(1)(a) of the Criminal Procedure Act 2009, it is contended that the jury's verdict 'is unreasonable or cannot be supported having regard to the evidence', this Court must apply the test formulated by Mason CJ, Deane, Dawson and Toohey JJ in M.[58] Hence, 'the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'.[59] The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury's advantage in seeing and hearing the witnesses.[60] Ordinarily, a reasonable doubt about guilt experienced by the appellate court is one that the jury should also have experienced.

110 Counsel for Awad submitted that, taken at its highest, the evidence relied upon by the prosecution did not establish that Awad had entered the van, and that the jury could not properly have excluded the hypothesis that Awad remained in King Street. Counsel relied on the following:

• first, no fingerprint of DNA evidence connected Awad with or to the Kia van, the interior of the Kia van, the interior of the warehouse at 27 Halsey Road or the five cardboard boxes which had constituted the consignment;

• secondly, there was no evidence of voice identification, indicating that Awad's voice had been recorded on the listening device installed in the consignment;

• thirdly, there was no surveillance evidence - or any CCTV, video or photographic evidence - which identified Awad standing immediately next to the Kia van, entering the Kia van, being driven or travelling in the Kia van, entering the warehouse at 27 Halsey Road, being present in the warehouse or departing from the warehouse in the Kia van;

• fourthly, and allied to the third point, with respect to the fact that there was no surveillance evidence of Awad (or any other person) remaining in King Street subsequent to the departure of the Kia van at 6.25 pm, the evidence was that the whole surveillance team followed the Kia van from 6.25 pm, leaving no member of the surveillance team in King Street to make any observations; and

• fifthly, Tambakakis gave evidence that Awad did not enter the Kia van, travel in the Kia van or enter the warehouse in Halsey Road.

111 In my opinion, based on all of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Awad entered the Kia van in King Street, and to reject the hypothesis that he did not do so.

112 I consider that the evidence was capable of demonstrating that Awad had a peculiar interest in the consignment in the days leading up to 10 May 2017. Not only did the evidence suggest that, by visiting the Campbellfield area on 8 and 9 May 2017 in the vicinity of where the consignment was located, Awad was monitoring whether there was any law enforcement interest in the consignment, but the 'walk and talk' meeting on 9 May was of particular significance, given the white BMW's role in escorting the van carrying the consignment from Kanati's residence in Coburg to its destination in King Street, Airport West. In my view, it was open to the jury to conclude that the occupant of the white BMW was monitoring, and supporting, the Kia driver's activities in delivering the consignment. Awad's meeting with the driver of the white BMW the previous day was a piece of circumstantial evidence that the jury was entitled to use as showing his interest in the consignment.

113 During the hearing in this Court, counsel for the respondent played CCTV footage recorded in King Street in the evening of 10 May 2017. The footage depicted Awad and Tambakakis approaching the van at around 6.21 pm. As he walked toward the van and out of shot, Awad appeared to be crossing the road to join Tambakakis. Soon after, the van is seen travelling away from the area in the direction of which Awad and Tambakakis had been seen walking. It was not disputed at trial that Tambakakis was driving.

114 The respondent's counsel also placed considerable reliance on a conversation picked up by the listening device within the consignment in the van shortly after the van drove away. Tambakakis admitted that he said, 'How little is this cunt?', and, 'How little is he?', because the driver's seat was too far forward for him. He asserted, however, that he was addressing these remarks to Rohen. Counsel for the respondent submitted that this evidence ought to be rejected, given that Tambakakis agreed that he was referring to the previous driver, who had been Rohen. It made no sense, counsel submitted, that Tambakakis would have spoken to Rohen in this way as if to a third person. These submissions have substance. In my view it was open to the jury to conclude that the conversation captured by the listening device was between two people who were familiar with one another, as Awad and Tambakakis apparently were.

115 Moreover, on Tambakakis' account, the whole purpose of Awad's attendance in Airport West was to obtain a sample of steroid pills. In those circumstances, the reason initially advanced for Awad not getting into the van appears somewhat thin. Tambakakis first proposed the explanation that Awad was worried that Edwards did not want 'the boys' to know the location of the warehouse, but then seemed to say that he did not know Awad's reasons for not getting into the van.

116 Further, in determining whether Awad had gone to the warehouse with Tambakakis, it was open to the jury to place significance on their behaviour after the van left the premises. When the two are depicted in CCTV footage walking back to Awad's car from where the van was parked, Awad is carrying the backpack containing the vacuum sealer, and Tambakakis admitted to carrying the scanner. They then sought to dispose of the padlock to the warehouse, an item which directly linked them to the premises. And significantly, the key to the Kia van was located in Awad's car.

117 In my opinion, the various pieces of evidence relied upon by the prosecution in combination would have permitted a properly instructed jury to conclude to the criminal standard that Awad entered the Kia van in King Street in the evening of 10 May 2017 and travelled to the warehouse in Halsey Road, thereby attempting to possess the consignment of cocaine. Quite plainly, a jury properly instructed on how to approach Tambakakis' evidence neither had to accept it, nor find as a result of it that there existed a reasonable hypothesis consistent with Awad's innocence.

118 As I have indicated, however, the jury were misdirected as to the manner in which to approach Tambakakis' evidence. Properly instructed, the jury may well have entertained a reasonable doubt on the critical issue in Awad's case. It is for that reason that there must be an order for a new trial.

119 As I have said, Awad's grounds 1 and 2, and Tambakakis' ground 3.1 must succeed.

120 In the case of each applicant, I would grant leave to appeal against conviction, allow the appeal and set aside the conviction. A new trial should be ordered.

121 We have had the advantage of studying in draft the reasons for judgment of Priest JA on the applications for leave to appeal conviction. We agree with his Honour's conclusions on each of the grounds, save for the ground in each application concerning the contravention of s 44J of the Jury Directions Act 2015 ('JDA') and one minor matter referred to later.[61] We are unable to uphold that ground in each application. We would grant leave to appeal but dismiss the appeals against conviction. Our reasons follow.

122 In conventional terms, the judge told the jury that there were three separate trials being heard together as a matter of convenience but that they were required to consider the case against each accused separately.

123 The judge emphasised to the jury that each of the accused was presumed innocent until proven guilty and that neither of the accused had to prove anything. In that context, he said that even though Tambakakis gave evidence, Tambakakis did not in any way assume some evidentiary onus in doing so, and told the jury he would return to that topic. He directed the jury on the criminal standard of proof, 'the highest standard of proof known to the courts'.

124 Again, in orthodox terms, the judge gave directions on circumstantial evidence and the drawing of inferences, explaining inferential reasoning by commonly employed and familiar examples. In that context, he told the jury they were only permitted to draw an inference contended for by the prosecution, in relation to the proof of an element of the offence, if it was the only reasonable inference available from the evidence. He told the jury to consider the evidence as a whole and that one piece of evidence may help resolve doubts about another, and reiterated that to find a particular accused guilty they must be satisfied that his guilt was the only reasonable inference that could be drawn from the circumstances established by the evidence.

125 The judge then gave general directions about the credibility and reliability of witnesses and, referring to Tambakakis, said that he would give specific directions about the evidence of the accused. The judge then addressed the evidence of Tambakakis in the following way:

Now, I have already pointed out to you that Mr Tambakakis gave evidence in the case and the accused of course is entitled to do so. Mr Tambakakis chose to give evidence in his own defence, he did not have to do that. An accused person has the right to remain silent in court, they are not a compellable witness, he cannot be compelled to give evidence. So, he chose to. In choosing to give evidence, Mr Tambakakis undertook to tell the truth, and he also submitted himself to cross-examination which is the way lawyers test a witness' credibility and truthfulness, and he was cross-examined over an extensive period of time by [the prosecutor].

Now, there are two factors that are significant that you should have regard to when you are assessing Mr Tambakakis' evidence. Firstly, in a criminal trial, there is nothing more than an innocent [person] can do than give evidence in his own defence and subject himself to cross-examination, and that is what occurred here. On the other hand, secondly, a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence. You should consider both of these observations when evaluating Mr Tambakakis' evidence.

In the end, it is for you to determine whether or not you accept it and what weight you give to it. In making this determination, you should treat the accused's evidence in exactly the same way as you would treat the evidence of any other witness. However, you must bear in mind, ladies and gentlemen, that an accused giving evidence in his own defence is probably under more stress than any other witness giving evidence in a trial. And if you were assessing Mr Tambakakis' demeanour, which of course you would have been when he gave his evidence, have regard to that fact.

And he did say himself that he was under some pressure, and I think I might have said to him, you know, it is not for him to make speeches, and of course that is true. You did not need him to tell you that he would be under stress, of course an accused person giving evidence in a criminal trial, a complex criminal trial, would be under stress. So, have regard to that when you are considering his evidence in the case. It is also essential, and this is very important in this case, ladies and gentlemen, that it is for the prosecution to prove its case beyond reasonable doubt.

It is not for Mr Tambakakis to prove his innocence. Now, this has not changed simply because he has decided to give evidence. This means that you must not find him guilty if you reject his evidence, if you decide to reject his evidence. If you say to yourselves, 'We do not believe a word of what he said', you would simply put that to one side, or, 'We do not believe Mr Tambakakis on important factual issues and therefore we are not prepared to act on his evidence', all of it, simply because you think on particular topics you do not accept it and you think that his evidence is unreliable, or untruthful, one or the other, or both.

If you arrive at those conclusions, and I am not suggesting you should one way or the other, it is entirely a matter for you by reference to all of the evidence in the case, but if you do arrive at that conclusion, then you simply put his evidence to one side and you then consider whether or not the prosecution has proved its case beyond reasonable doubt against him. Now, as I say, it is essential that you understand that. It would be perfectly open to you to say, 'Well, we don't believe a word of what Mr Tambakakis has said, and his evidence is unreliable. But we're not satisfied that the prosecution has proved its case beyond reasonable doubt.'

The burden of proof remains on the prosecution irrespective of what you make of Mr Tambakakis' evidence. Of course, however, if you do accept Mr Tambakakis' evidence, you do not have to be satisfied of its truth beyond reasonable doubt. If you are satisfied that the evidence of Mr Tambakakis, that is, his evidence as to what took place, is reasonably possible, then you would have a reasonable doubt as to his guilt and you would find him not guilty.

126 A short time later, the judge reminded the jury that Tambakakis admitted that he knew there was a substance in the copier boxes, but told them it was up to them to determine whether or not the prosecution had proved that Tambakakis knew it was a border controlled substance. He said that if they found that the account Tambakakis gave was reasonably possible, then they would find him not guilty. But if they found that it was untruthful or unreliable, they were to put it to one side and consider whether the prosecution had proved its case against him beyond reasonable doubt.

127 As noted in the reasons of Priest JA, counsel for Tambakakis took exception to the earlier direction on the basis that it involved a breach of s 44J of the JDA. No redirection was sought and no application to discharge the jury was made. In the course of discussion on the exception, the judge observed that he had said that Tambakakis assumed no onus of proof. The judge said that the error was regrettable, adding that 'it's balanced out' in that he emphasised that an innocent person cannot do anything more than give evidence in their own defence. Counsel for Tambakakis said that he was 'not doubting it was balanced.' The judge asked counsel if there was anything that they wanted him to say to correct the error and that he would certainly 'emphasise the reasonable possibility issue that you've referred to which is really what the case is going to turn on.'

128 The following morning, the judge was told that Tambakakis did not seek any redirection or correction and he resumed the charge to the jury, addressing the elements of the offence and the basis on which the parties had put their respective cases.

129 In relation to the evidence of Tambakakis, the judge carefully directed the jury that there were 'four broad conclusions' they might reach about his evidence. He explained:

[T]hese are directions of law. If you think that his evidence is true, that is if you accept the truthfulness of Mr Tambakakis' evidence then you would find him not guilty because you would accept that he did not know that the consignment contained a border controlled drug, namely cocaine.

If you're not sure whether Mr Tambakakis' evidence is true but you think it might be, then you'll have a reasonable doubt about the prosecution's case. And, again, you would find him not guilty.

Similarly, if you merely prefer the evidence of the prosecution witnesses to Mr Tambakakis' evidence and his account, then you would also find him not guilty.

It's not sufficient for you to merely find the prosecution case to be preferable to the defence case. In other words, it's not a question for you of simply balancing one case against the other. As I have said to you, at all times the prosecution ... must establish Mr Tambakakis' guilt beyond reasonable doubt.

So, therefore, if you conclude that the account that Mr Tambakakis has given, that is, that at all times he believed, up until the box was opened in the warehouse by Sam, he believed it contained steroids. If you believe that it's reasonably possible that that's what he believed, then you would find him not guilty of the charge.

As I explained to [you] yesterday, if you reject Mr Tambakakis' evidence, simply put it to one side. If you're not satisfied of its truthfulness and reliability, you put it to one side. Simply because you reached that conclusion it does not mean that you therefore find him guilty. You still need to examine the case relied on by the prosecution and be satisfied of the issue, the element in his case beyond reasonable doubt before you could find him guilty.

131 Counsel for Tambakakis took further exception to the charge on the basis that this last passage risked reversing the onus of proof. Counsel invited the judge to tell the jury:

[T]hat the proper approach to the accused's evidence is not approaching it as to whether or not you're satisfied of its truth and reliability but whether or not the Crown are able to exclude the defence that Mr Tambakakis has put beyond reasonable doubt.

132 The judge agreed to do so. First, resuming his charge, the judge summarised the evidence of each witness in the case. That process ended with the judge summarising the evidence of Tambakakis. At the introduction of that summary, the judge told the jury:

So the final witness in the case was Mr Tambakakis who gave evidence in his own defence. And as I have explained to you, you will approach his evidence - it's important that you understand, ladies and gentlemen, that having regard to the fact that Mr Tambakakis has given evidence, the prosecution have to establish beyond reasonable doubt that his account of the evidence, that his account of the events is not a reasonable possibility. Or, put another way, if it's reasonably possible, if you regard it as reasonably possible that Mr Tambakakis believed that the consignment contained steroids up until the time that the surveillance device was located in the warehouse, if you are satisfied of that, that is, that it is reasonably possible, you would not be satisfied that the prosecution has proved its case against him beyond reasonable doubt and you would find him not guilty.

133 The judge went on to summarise the evidence of Tambakakis. He concluded by reminding the jury, again, that if they accepted that it was reasonably possible that Tambakakis believed that the consignment may have contained steroids, they must find him not guilty. No criticism was made of the summary or that conclusion.

The Jury Directions Act

134 The stated purposes of the JDA include to reduce the complexity of jury directions, to simplify and clarify the issues that the jury must determine, and to provide simplified directions in relation to specific issues.[62] By way of an aid to interpretation, s 5 of the JDA sets out guiding principles that include that a judge should: give directions on only so much of the law as the jury needs to know to decide the issues; avoid using technical, legal language wherever possible; and be as clear, brief, simple and comprehensible as possible.[63]

135 A consistent theme of the JDA is that it is the responsibility of the judge to determine the issues in the trial, the directions that should be given and their content, and the role of legal practitioners appearing in a criminal trial to assist the judge to give the appropriate directions.[64]

136 Division 9 of Part 4 of the JDA deals with certain directions in the context of an accused person giving evidence in a criminal trial. Section 44H prohibits the trial judge, the prosecution, and the defence from saying or suggesting to the jury that:

(a) an interest in the outcome of the trial is a factor to be taken into account in assessing the evidence of witnesses generally; or

(b) the evidence of an accused is less credible, or requires more careful scrutiny, because any person who is on trial has an interest in the outcome of that trial.

137 Section 44I allows defence counsel to request under s 12, a direction on either or both of the following:

(b) the interest that the accused has in the outcome of the trial.

138 Where a direction of that kind is given, s 44I(2) requires the judge to explain a number of things to the jury including that the fact that an accused has given evidence does not change the prosecution's obligation to prove that the accused is guilty. The judge must also explain that the evidence of the accused should be assessed in the same way as other witnesses and the jury must not give less weight to the evidence of the accused just because any person who is on trial has an interest in the outcome of the trial.

139 Sections 44J and 44K of the JDA, which are critical to the present applications, provide:

44J Prohibited directions in relation to evidence of an accused

The trial judge must not direct the jury about any of the following matters in relation to the evidence of an accused -

(a) whether the accused is under more stress than any other witness;

(b) that the accused gave evidence because -

(i) a guilty person who gives evidence will more likely be believed; or

(ii) an innocent person can do nothing more than give evidence.

Note

This section prohibits the trial judge from giving directions to the jury about particular matters. This does not limit the obligation of the trial judge to refer the jury to the way in which the prosecution and the accused put their cases in relation to the issues in the trial - see section 65.

44K Abolition of common law rules

(1) Any rule of common law under which a trial judge is prohibited from directing the jury on the interest a witness or an accused may have in the outcome of a trial is abolished.

(2) Any rule of common law under which a trial judge is required or permitted to direct the jury about the matters referred to in section 44J in relation to the evidence of an accused is abolished.

The Criminal Procedure Act: section 276

140 Section 276 of the Criminal Procedure Act 2009 provides that, on an appeal against conviction under s 274, this Court must allow the appeal 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.

141 If the Court is not satisfied as to those matters, it must dismiss the appeal.[65]

142 Given the clear, but inadvertent, contravention of the prohibitions in s 44J of the JDA in this case, the critical issue is whether that error or irregularity has resulted in a substantial miscarriage of justice.

143 In Baini v The Queen,[66] a majority of the High Court said:

No single universally applicable description can be given for what is a 'substantial miscarriage of justice' for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Secondly, there is the case 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. Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a 'substantial miscarriage of justice' ultimately requires a judgment to be made.[67]

144 The majority did not posit a single test for identifying a 'substantial miscarriage of justice'. The statutory question which must be answered was said to be the same as asking whether an error 'could have reasonably made a difference' or whether an error or irregularity is 'fundamental'.[68] The Court emphasised that these were not substitutes for the statutory question. Rather, the question could sometimes be answered by asking those questions. Another way of asking the statutory question was to ask whether, having regard to the whole of the evidence at trial, the court could conclude that a verdict of guilt was 'inevitable' because the jury could not have entertained a reasonable doubt.[69] That was said to be the correct approach 'at least in cases like [Baini] where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded'.[70]

145 In addressing the question whether the verdict was inevitable, the appellate court has to accommodate as central conceptions the presumption of innocence, the burden and standard of proof, and the potential interconnectedness of all of the aspects of a trial. Further, the appellate court must not lose sight of its own role (and the limitations that come with it) and the role of the jury as the constitutional trier of fact. These questions, are, as they were in Weiss v The Queen (a proviso case), informed by three fundamental propositions: the appellate court must itself decide whether a substantial miscarriage of justice has occurred; the task is an objective one not materially different from other appellate tasks; the standard of proof is the criminal standard.[71]

146 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. In those cases unless the Court can be satisfied that an acquittal was open there will have 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.'[72] If an appellate court, on its own independent assessment of the admissible evidence and having regard to the limitations of an appellate court assessing the written record, comes to the conclusion that only a finding of guilt was reasonably open then any error could not have given rise to a substantial miscarriage of justice.

147 Where a jury is given a direction that they should not have been given, it may not always be necessary (at least in the first instance) to approach the issue as an inquiry into whether the verdict was inevitable. The majority in Baini did not specifically address this kind of case. However, Gageler J, dissenting in the result, said:

To formulate the question for the Court of Appeal, applying the criterion in para (b) of s 276(1) in the face of an identified error or irregularity, in terms of whether a jury verdict was 'inevitable' may not be inappropriate in the circumstances of a particular case ... But the formulation is best avoided. It runs the risk of misapplying the onus and of overlooking the necessity for a causal connection to be affirmatively established.[73]

148 While the members of the High Court differed as to the test to be applied in the circumstances of that case, or other cases involving the wrongful admission or non-admission of evidence, only Gageler J articulated an approach of more general application. He emphasised the requirement in s 276(1)(b) that there be a causal link between the identified error or irregularity and the substantial miscarriage of justice.[74] Applying the provision in the face of an identified error or irregularity, and leaving aside a case where there has been an impact on a fundamental aspect of the trial process, Gageler J said that the critical question is ordinarily, 'is the Court satisfied by the appellant that, but for the error or irregularity, the appellant might have been acquitted?'[75]

149 Putting the question that way recognises that it may be possible to conclude that no substantial miscarriage of justice resulted from the identified error or irregularity, by reference to the part that error or irregularity played in the wider context of the trial, without assessing the whole of the record to determine whether a finding of guilt was the only conclusion reasonably open. In such a case, the nature of the error or irregularity may be such that it could have made no difference to the trial. This was recognised by the majority of the High Court in Kalbasi v Western Australia,[76] in the context of the common form proviso:

A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not. ... The question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred.[77]

150 To proceed immediately, and in every case, to the issue of inevitability of the result, without regard for the capacity of the error to have affected the result of the trial (in this case, without precisely identifying how the direction may have affected the outcome), would risk undermining the role of the jury by ignoring the causal connection between the error and the result arrived at by the jury, which is the focus of s 276(1)(b). In the case of a misdirection, there will have been no substantial miscarriage of justice if, having regard to the direction in the context of the charge as a whole, the erroneous direction was innocuous, had been corrected, or could have had no bearing on the outcome of the trial.[78] This latter pathway may be analysed in terms of the capacity of the misdirection to affect the course or outcome of the trial.[79]

151 The majority in Baini did not require the test of 'inevitability' to be applied in cases such as the present, or other cases involving the incorrect application of the rules of evidence. The proper course is therefore to apply the statutory language and ask whether the giving of the direction prohibited by s 44J of the JDA resulted in a substantial miscarriage of justice, bearing in mind the above observations about the possible effect of a misdirection of law.

152 To explain the role of the qualifier 'substantial' in the phrase 'substantial miscarriage of justice', Gageler J observed in Kalbasi:[80]

If any departure from a trial according to law would have the potential to be characterised as a miscarriage of justice, then to meet the mischief to which the addition of the qualifier is directed a threshold of materiality needs sensibly to be introduced into the analysis before any question of the appellate court's persuasion of guilt is reached. There will be cases in which the departure was plainly 'innocuous' in that it could have 'occasioned no real forensic disadvantage to the appellant'.[81]

153 The nature and extent of the error will always be important in a number of respects. It will determine whether the error had the capacity to affect the result and whether it involved a fundamental departure from the processes of trial, and whether it is necessary or conclusive for the appellate court to ask itself whether the verdict of guilt was inevitable. The majority of the High Court said in Kalbasi:

Contrary to the appellant's submission, Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of 'process' and 'outcome' may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter.[82]

154 We note again that Kalbasi was a proviso case under the common form appeal provisions. In Baini, the High Court emphasised that what is said in those cases cannot be slavishly adopted in cases under s 276 of the Criminal Procedure Act. Nevertheless, the observations from Kalbasi are pertinent and it is only once the nature and the extent of the error is identified that the question whether it resulted in a substantial miscarriage of justice can be answered. That assessment depends on whether the direction had the capacity, as a matter of logic and rational decision making, to influence the jury in a way that risked deflecting them from the correct course.[83]

155 Both applicants were charged with one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled substance.[84] The critical issue in Tambakakis' trial was whether the prosecution had proved beyond reasonable doubt that Tambakakis knew or believed that the substance that was concealed in the copier boxes was cocaine. There was no issue that the copier boxes had a commercial quantity of cocaine, a border controlled substance, secreted within them. Further, there was no issue that Tambakakis was in possession of the substance. Although the fault element attached to the element that the substance is a border controlled substance is recklessness,[85] the prosecution put its case on the basis that the applicants knew or believed that the substance was cocaine. Tambakakis mounted an affirmative defence on the basis that he believed that the substance was steroids.

156 The applicants submit that the impugned direction involved a serious departure from the prescribed processes for a criminal trial and that the breach of s 44J of the JDA in and of itself constituted a substantial miscarriage of justice. They also submit that the direction had the potential to affect the jury's assessment of the truthfulness and reliability of the evidence of Tambakakis by giving a reason to discount his evidence on the basis he was an accused person. Further, they submit that the direction distracted the jury from a proper consideration of the burden and onus of proof by inviting the jury to consider whether they were satisfied that the accused was either guilty or innocent.

157 Although the arguments made by each applicant overlap, it is convenient to start with Tambakakis.

158 For reasons which we will come to, we do not accept that the contravention of s 44J in this case constituted a fundamental departure from the processes of a criminal trial that in and of itself amounted to a substantial miscarriage of justice (being the third kind of case mentioned by the majority, and put to one side by Gageler J, in Baini). Before coming to that issue, it is necessary to address the way in which the direction may, conceivably, have affected the deliberation of the jury.

159 The following general observations are important.

160 First, it is the judge's responsibility to decide what are the real issues in the case. The judge must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury needs to know to decide those issues.[86] The judge must assist the jury by giving directions on the law as required by the JDA, and where available the common law. In giving directions the judge must not deflect the jury's attention from the need to be persuaded beyond reasonable doubt of the accused's guilt before returning a verdict of guilty.[87] As was said by the High Court in Robinson v The Queen [No 2],[88] 'the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts.'[89]

161 The question of onus and the presumption of innocence are critical to every criminal trial. In Krakouer v The Queen[90] McHugh J said:

Misdirections of law in a criminal trial can take many forms. Of few of them can it be said that, at all times and in all circumstances, they constitute a miscarriage of justice. Legal error must often give way to cogent evidence of guilt. But on such matters as the standard or onus of proof or the functions of the jury, the position is different. These matters go to the root of a criminal trial according to law. It is difficult to see how the weight of evidence can have any relevance as to whether or not a misdirection on such matters is a miscarriage of justice.[91]

162 Particular issues arise where an accused person gives evidence, especially perhaps where the accused proffers an affirmative defence.[92] Left uninstructed, a jury may reason that the outcome of a criminal trial depends on which party has the stronger case, or arrive at their verdict merely on the basis of whether they believe the accused person's account given in the witness box. Such reasoning would involve a departure from the fundamental features of a criminal trial as an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt.[93] Where an accused gives evidence the risk of a shift in onus is real and the directions given by the judge must be astute to address and deal with it directly.

163 Second, a jury's assessment of credibility and reliability of a witness is often informed by a wide variety of factors and may be influenced by factors that others may consider subtle or unimportant.

164 Third, the issue is whether the impugned direction had the capacity to direct or encourage the jury to reason in a particular way or from a particular standpoint which they may not have adopted had the direction not been given. In this context, it is important to recall that, as is orthodox, the judge told the jury that they were bound and must follow any directions given to them by him. He noted that they were not bound by any comment that he might make but added that he very much doubted whether he would make any comment.

Did the direction undermine the presumption of innocence and the onus of proof?

165 For convenience, the relevant passage of the charge is repeated and is as follows:

Now, there are two factors that are significant that you should have regard to when you are assessing Mr Tambakakis' evidence. Firstly, in a criminal trial, there is nothing more than an innocent [person] can do than give evidence in his own defence and subject himself to cross-examination, and that is what occurred here. On the other hand, secondly, a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence. You should consider both of these observations when evaluating Mr Tambakakis' evidence.

166 Immediately before the impugned direction the jury were told that Tambakakis chose to give evidence, he did not have to do so, and he had submitted himself to cross-examination. The direction then identified two alternative justifications or explanations for an accused giving evidence, based on the accused being either a guilty person or an innocent person, which the jury were invited to consider when evaluating Tambakakis' evidence.

167 The direction invites consideration, from the perspective of an accused, as to why the person may have chosen to give evidence. Importantly, the direction provides no basis to assume which of the two alternatives applies in a given case. The direction provides no hint or clue as to which of the two might apply. That is, the direction does not assist the jury in resolving the question of guilt or onto which side a particular accused might fall. It is for that reason that, in R v Storey,[94] the judge had told the jury that they balance each other out. It is doubtful whether the direction is capable of meaningfully assisting the jury in its task. But the question is, of course, whether it diverted them from that task in this case.

168 It would not be open to reason that, because the judge said that there is nothing more than an innocent person can do in a criminal trial than give evidence, the judge was somehow hinting or pointing to the accused as an innocent man. The same holds true for the other formulation in relation to a guilty man. The combination of both alternatives rules out any suggestion that the direction was favouring either conclusion.

169 If anything, the direction leads to the conclusion that any search for some general overarching reason for the accused having chosen to give evidence may be a barren inquiry because there are at least two and equally available reasons. And in any trial such general statements must be considered in the context of other, more detailed directions. Further, the direction reduces the many possible reasons why an accused might give evidence to two glib and rhetorical alternatives that lack any real content or potency: they identify conclusions without saying how those conclusions might be arrived at. For that reason as a tool of analysis the two formulations are likely to be of no use to a jury.

170 In the context of a criminal trial, framing the issue as one of guilt or innocence might distract attention from the real issue, namely, whether the prosecution has discharged its burden of proving guilt of the accused beyond reasonable doubt. Any direction that is liable to lead the jury to think in terms of reaching a positive state of satisfaction as to the guilt or innocence of the accused would risk distracting the jury from their task. On the other hand, a mere reference to the notion of innocence is unlikely to have that effect, given that juries are routinely told about the presumption of innocence.

171 In our opinion, the impugned direction when read in the context of the charge as a whole, could not have been taken by the jury as an invitation to determine which of two possible alternatives - guilt or innocence - they preferred. At no time did the judge frame the issue as one of guilt or innocence. The direction in relation to the two possible reasons why the accused chose to give evidence did not, in any sense, detract from the clear directions, given on multiple occasions during the charge, that, at all times, the prosecution carried the onus of proof and the standard was beyond reasonable doubt. It could not have been taken, by implication, to recast the express terms of the directions concerning both the burden and onus of proof.

172 In looking at the impact of the directions, it is also important to observe that the judge tied the directions as to onus and standard of proof very closely to the facts and the real issues in the trial. He explained in some detail the prosecution and defence cases and summarised the evidence of all of the witnesses. Whereas the impugned direction was general in nature and did not engage at all with the specifics of the trial, the judge directed the jury as to how they were to approach the question whether or not there was a reasonable possibility that Tambakakis believed the consignment was of steroids. The jury were directed with great specificity as to the 'four broad conclusions' they might reach regarding the evidence of Tambakakis, and could have been under no misapprehension about the importance of Tambakakis' account that he believed that the substance was steroids, and how their assessment of that account properly bore on their task.

173 If the jury had applied the impugned direction they may have understood the judge to say that Tambakakis may have given that account because he was innocent and could do no more, or because he was guilty and wanted to proffer a version and tough out cross examination. Taken in isolation, the jury might have thought that this implied that their task was to decide whether Tambakakis was innocent or guilty. But the jury could not possibly have had that impression once they came to take account of and apply the remainder of the judge's specific and express directions about the proper use of Tambakakis' evidence. Even before that point in the charge, the jury were immediately told to assess his evidence as they would any other witness but bearing in mind he was under stress, that he did not have to prove anything and that the burden of proof remained on the prosecution regardless of what they made of his evidence, and that the standard of proof was beyond reasonable doubt.

174 More particularly, any remaining scope for the jury to misunderstand their task when the impugned direction was given would have been dispelled by the two directions given subsequently concerning the obligation of the prosecution to 'establish beyond reasonable doubt that [Tambakakis'] account is not a reasonable possibility'. The formulation used by the judge reflected the position taken by Tambakakis when he sought a further redirection at the conclusion of the charge.

175 We are also not persuaded that the jury could have taken the impugned direction as an instruction or invitation to discount or closely scrutinise the evidence of Tambakakis because he was the accused. As part of the direction, the jury were told that it was for them to determine whether or not they accepted the evidence and what weight to attribute to it. They were told to treat his evidence in exactly the same way as they would treat the evidence of any other witness and that it was not for him to prove his innocence.

176 The direction does not contain the vice considered by the High Court in Robinson, which was concerned with an invitation to reason that the accused had an interest in the outcome and therefore his or her evidence needed to be scrutinised carefully. Because every accused has an interest in the outcome, the logical corollary of such a direction was that the evidence of every accused person was to that extent self-serving and therefore suspect. The impugned direction does not invite that reasoning. This form of reasoning is addressed in ss 44H and 44I. It is not suggested that there was a breach of the letter or spirit of those provisions.

177 In our view, taken as a whole, the jury were appropriately and fairly directed on the onus and standard of proof and would not have been distracted by the impugned direction from the performance of their task. We do not consider that the impugned direction could have led the jury to consider that they were required to view Tambakakis' evidence with scepticism or doubt. In reaching this conclusion, we are fortified by the approach taken to the direction before the enactment of s 44J of the JDA. The direction has been upheld on a number of occasions when it has been the subject of direct attack (albeit on different grounds).

178 As both the note to s 44J and the reasons for judgment of Priest JA show, directions in the form given in this case were not uncommon in Victoria and have been considered but not deprecated by the Court of Appeal in a number of decisions.

179 In R v Haggag,[95] the accused faced trial for theft and robbery. The prosecution relied on a disputed confession and the accused contended that police witnesses had a motive to lie. The accused gave evidence. In the course of his charge to the jury the judge said:

You will consider any motive that you might consider that a witness has to give a testimony, which that witness gives and whether that motive affects the testimony. On the other hand, it is alleged that the accused has a motive to give his evidence and that motive is the motive of self-survival and I shall discuss with you the course taken by the accused in more detail shortly.[96]

180 In an application for leave to appeal against conviction, the accused submitted that the direction offended the holding in Robinson by inviting the jury to scrutinise the accused's evidence on the basis that he had an interest in the outcome and therefore a motive to lie.

181 That submission was rejected. In the course of his reasons, Callaway JA, with whom the Chief Justice and Kenny JA agreed, explained that the vice of the direction impugned in Robinson was that either it discriminated against the accused as a particular kind of witness whose evidence deserved scrutiny or it undermined the presumption of innocence.

182 Callaway JA drew the distinction between a direction of the kind deprecated in Robinson and the direction now prohibited by s 44J(b) of the JDA in the following passage:

The first suggestion is that, if the accused is guilty, he or she has a motive to lie. That does not assume that the accused is guilty. It simply makes one of the points that is made in the conventional comment that, whilst there is really no more that an innocent person can do than give sworn evidence and submit to cross-examination, a guilty person may choose to brazen it out in the witness box. The second, quite different, suggestion is that the accused has a motive to lie in order to secure an acquittal.[97] That undermines the presumption of innocence, because it assumes that the accused person is guilty: apart from exceptional cases, if he or she is not guilty, there is no motive to lie. It also invites the jury to engage in circular reasoning: (a) assume sub silentio that the accused is guilty; (b) use that assumption to discount his or her evidence; and (c) having discounted that evidence, find that the accused is guilty.[98]

183 A similar issue arose in R v McMahon.[99] In that case, the trial judge had directed the jury about various factors that they could take into account in assessing the credibility of witnesses. In that context, he told the jury that they could take into account the witness's demeanour; the consistency of the evidence with other evidence in the case; whether there was independent support for their evidence; whether the jury regarded it as honest and reliable evidence; and that it was open to accept part of a witness's evidence, but not other parts. In the context of addressing the evidence given by the accused, the judge said:

You will recall that the accused gave evidence and when you are assessing his evidence, you apply exactly the same assessing techniques to that evidence as you do to all the other evidence in the case. Is it honest, is it reliable, is it accurate? Is there a motive to tell untruths? The same sorts of application that I have already indicated to you.[100]

184 It was submitted that the reference to a motive to tell untruths offended Robinson. In rejecting the submission, Winneke P placed emphasis on another part of the charge where the judge, after referring to the fact that the accused had given evidence when he was under no obligation to do so, went on to say:

There are two things that you have got to bear in mind about this. First, a guilty person might well decide to brazen it out in the witness-box in the hope that he will be more likely to be believed if he takes the risk of being cross-examined than if he dodged it by staying in the dock and not giving evidence. ... Second, however, that an innocent person can do no more than giving evidence on his own behalf. This is what I say happened, he says, and I [pledge] my oath to it, and you can cross-examine me about it. That is ... what the accused did here. You should weigh both these comments when considering what weight you should give to the accused's evidence, remembering that the accused may be under more strain than other witnesses because he is the accused, and remembering of course that, by going into the witness box, he does not assume any burden of proof. The burden of proof still rests on the Crown. He does not have to prove anything to you; he simply puts his evidence in with the evidence of all other witnesses ..."[101]

185 Winneke P said that taken as a whole, the jury were properly directed as to the manner in which they were to approach the evidence of the accused; and that they would, themselves, have been left in no doubt that they were to treat his evidence no differently than the evidence of other witnesses in the trial.[102] He rejected the submission that the effect of the directions was to invite the jury to treat the applicant as a 'suspect witness', or that the presumption of innocence was undermined.

186 In R v Buckley,[103] the trial judge in his charge to the jury referred to the fact that the accused had given evidence and to a comment by the accused's counsel as to what to make of that fact, and continued that counsel for the accused had:

anticipated the comments that judges invariably make. What more can an innocent man do than get into the witness-box and pledge his oath to his account? On the other hand, there is an argument [to the effect that], well, you might as well get in there and brazen it out; you would be expected to give evidence and give an account about it. Those things sort of balance themselves out.[104]

187 Nettle JA rejected a challenge to this aspect of the charge on the basis that:

Read in context, the words used are just another and in my view just as acceptable way of expressing the standard direction: that while an accused can do no more than get into the witness box and give evidence, it is always possible that a guilty person may decide to brazen it out in the witness box in the hope that he or she will be more likely to be believed by taking the risk of cross examination than by dodging it.[105]

188 In Brown v The Queen,[106] two judges of this Court observed that a direction of the kind in issue was, at the time, orthodox and rejected a ground that the giving of the direction (to which no objection had been made) resulted in a substantial miscarriage of justice.

189 The conclusions reached in those cases as to the practical effect of the impugned direction given in this case accord with our conclusion in relation to the evidence of Tambakakis. For the reasons already given, in the context of the charge as a whole, the jury were not distracted from their task. The content of the direction was not such as to give rise to a miscarriage of justice.

190 It follows that, subject only to the question whether there was a fundamental departure from the process required for a fair trial, the contravention of s 44J(b) did not result in a substantial miscarriage of justice in the trial of Tambakakis.

191 That leaves for consideration the argument that the breach of s 44J of the JDA resulted in a substantial miscarriage of justice because it constituted a fundamental departure from the processes of a criminal trial, or went to the 'root' of the trial.

192 The fact that the legislature has prohibited a judge giving a direction in the form given in this case cannot be ignored. However, the breach did not involve a failure to instruct the jury on the burden and onus of proof and did not infect the jury's assessment of the credibility of Tambakakis. Further, given that the purposes of the JDA are to reduce the complexity of jury trials and to simplify and clarify the issues that juries must decide, it cannot be concluded that every provision of the JDA reflects an essential requirement of a fair process that goes to the 'root' of the trial.[107]

193 For example, in this case, the judge directed the jury, in considering the evidence of Tambakakis, to bear in mind that an accused person is 'probably under more stress than any other witness giving evidence in a trial.' That direction was in contravention of s 44J(a) of the JDA. Understandably, no complaint is made by Tambakakis about this direction. It could not have worked to his disadvantage, particularly where in the course of his evidence he had on a couple of occasions told the jury that he was under stress and that giving evidence was very difficult for him.

194 Unlike other provisions, for example s 44H of the JDA, the prohibition is imposed on the trial judge and not on the parties. It must follow that it would not be a contravention of the JDA for the defence or the prosecution to address the jury on these matters. As the note makes clear, where that occurs, the judge may refer to this issue in the context of describing how the parties put their cases.

195 On that basis, the text of s 44J of the JDA allows for a party to address on one or more of the three matters covered by s 44J, presumably on the basis that it might legitimately have some forensic value to that party. Relatedly, it may be inferred that the introduction of one or more of the matters at the hands of a party would not poison the trial process. Of course that does not mean that there is no difference between one of the parties raising a matter in support of its case and the judge giving a direction. Plainly the two are very different. However, the ability of the parties to employ either of the rhetorical statements in s 44J(b) confirms that they are not inherently poisonous to the trial process.

196 With respect, we share the view taken by Priest JA that the contravention of s 44J did not amount to a serious departure from the prescribed processes of trial.

197 It follows that conviction ground 3.1 sought to be advanced by Tambakakis must fail, although leave should be granted in respect of it.

198 Subject to one qualification, that disposes of Tambakakis' conviction appeal. The qualification concerns ground 3.5, as to which we reach the same result as Priest JA but for slightly different reasons. By this ground Tambakakis sought to take issue with the judge's direction that it was part of the prosecution's case that 'the value of the consignment was such that he must have known by reference to its value that it contained a border controlled drug, cocaine'.

199 Priest JA considers that this direction was logically flawed because, for Tambakakis to have known the value of the drug, he had to first know that it was cocaine. We agree that, if the jury thought this was the prosecution case, they would readily have put the argument to one side because there was no evidence that Tambakakis knew the actual value of the drugs. However, Tambakakis gave evidence that he had been told that the drugs were worth a 'stack' and should not be left unattended in the open. In our view, the jury would have considered that the judge was referring to this evidence in his summary of the prosecution case. It was open to them to take this into account as part of the circumstantial case upon which the prosecution relied in order to infer that Tambakakis knew that the drugs were cocaine, rather than steroids.

200 We would therefore dismiss Tambakakis' conviction appeal.

201 The position of Awad in relation to the s 44J argument is different in an important respect but the outcome is the same. Given the way the prosecution put its case, there can be no doubt that the evidence of Tambakakis was very important to Awad's defence. However, in assessing Tambakakis' evidence that Awad did not get in the van, for the purposes of Awad's trial, the presumption of innocence that Tambakakis enjoyed in his own trial was not relevant. More fundamentally, however, for the reasons already given we are not persuaded that the impugned direction undercut the evidence of Tambakakis or invited the jury to disbelieve him.

202 It follows that the contravention of s 44J(b) in relation to Tambakakis did not result in a substantial miscarriage of justice in the trial of Awad.

Application for leave to appeal against sentence

203 We turn then to the applications for leave to appeal against sentence. The circumstances of the offending have already been described and it is not necessary to repeat those matters. The applicants were each sentenced to a term of imprisonment of 15 years with a non-parole period of 10 years.

204 After setting out a description of the offending, the judge said that it was not possible to identify with absolute precision the role that each of the applicants played in the criminal organisation engaged in the offending. He continued:

However, it is clear that this was a well-resourced, planned and carefully executed crime. You were both engaged shortly after the consignment arrived from Mexico and you both took active counter-surveillance steps over a period of two days prior to deciding to take possession of the consignment for the purpose of unloading the cocaine. The consignment was moved to various locations with the knowledge of each of you for the purpose of detecting whether it was under surveillance by authorities.

I am satisfied on the evidence led at the trial that while you played different roles in the offence, you both played a coordinating and important role in it. You must have been in communication and you supported one another in your respective roles in the offending. You have known one another for in excess of 10 years and have a common circle of friends. There would have been a high degree of trust between you such that you would engage in this extremely serious offending together.

Whilst it is not possible to conclude that either of you were principals in the criminal organisation involved I am satisfied to the criminal standard that you both occupied senior roles. Plainly, you were also both motivated to offend by the enormous profits to be made and there is no proper basis for me to distinguish between either of you in that regard.[108]

205 The judge did not accept that either of the applicants became involved 'at the last minute' and reiterated that their activities had been planned, co-ordinated and carefully carried out. The judge concluded that the applicants were 'senior members of a criminal organisation engaged in a crime of the utmost seriousness for profit.' He described the moral culpability of each applicant as high and observed that there was little to distinguish between them in terms of roles or moral culpability.

206 Addressing each applicant's individual circumstances, the judge noted that Tambakakis was 35 years of age at the time of sentence, and was not a first time offender, but that his criminal history had no significance for sentencing purposes. He referred to what he said was an impressive body of character references and noted that Tambakakis had an established work history. He noted a medical condition that would cause continuing hardship but said that Tambakakis would be able to access medical support and medication for this in prison.

207 Awad was 41 years of age at the time of sentence and was also not a first time offender, but again the judge noted that his relatively minor convictions in 2009 had no significance for sentencing purposes. He had a stable childhood and is married with two young children. The judge found Awad to be an intelligent man with an established work history and referred to what he again described as an impressive body of character evidence. He said that Awad had made a considered decision to commit a crime of the utmost seriousness for profit, took a calculated risk, and that his prospects for rehabilitation must be approached with caution.[109] He noted that there was no evidence of remorse and that Awad had sought to minimise his role in the offending in relation to his co-accused.

208 In the result, the judge said that he could not distinguish between the applicants based on their roles and respective culpability, and that the differences that existed in individual background and circumstances did not warrant a different sentence being imposed.

209 Tambakakis seeks leave to appeal his sentence on a single proposed ground that seeks to overturn findings made by the judge as to the role played by him in the offending.[110] He contends that it was not open to the judge to find that he and Awad:

(a) occupied 'senior roles' in the organisation that imported the cocaine;

(b) were 'senior members' of that organisation;

(c) intended 'to be involved in the commercial movement of the cocaine'; or

(d) did not become involved in the offending at the last minute.

210 Tambakakis submits that there was no evidence linking him to the importation of the cocaine before 8 May 2017. Specifically, there was no evidence linking him, or Awad, to the enquires with DHL Express about the arrival of the consignment or the payment of import duties. The applicant submits the fact that he drove a truck registered to his business and emblazoned with his business name and took the consignment to a property used by him was inconsistent with the judge's view that the offending was well-resourced, planned and carefully executed.

211 He submits that the judge's finding that neither Tambakakis nor Awad became involved 'at the last minute' is irreconcilable with another finding that both were 'engaged shortly after the consignment arrived from Mexico'. Tambakakis referred to evidence of Detective Sergeant Randall that 'heads of syndicates' normally attempt to distance themselves from the drugs whereas Tambakakis had collected the consignment, and used his own truck to do so. There was no evidence that he had given instructions or directions that might point to a position of authority and there was no explanation for the judge's conclusion that the two applicants were senior members who played senior roles in the activity.

212 Awad seeks an extension of time in which to appeal his sentence. The extension is not opposed and it should be given. He also seeks to propound a single ground, namely, that the judge erred in failing to pass a sentence upon him that was less than that imposed upon Tambakakis, having regard to the different roles performed by each in attempting to possess the border controlled drug.

213 Awad submits that any assessment as to the respective roles in the offending must focus on the steps each offender took in the commission of the offence. He notes that the prosecution eschewed any reliance on complicity or joint commission of the offence.

214 In his written case in support of the ground, Awad identifies four 'material and objective differences' between the offenders' offending. They are:

(a) Tambakakis admitted in his evidence that he was in contact with those responsible for the importation whereas there was no evidence Awad was connected to those responsible;

(b) Awad was only in possession of the substance from the time he entered the van whereas Tambakakis had been in possession from 8 May 2017;

(c) Awad did not facilitate the movement of the consignment before entering the van at King Street. Tambakakis moved the consignment to his yard on 8 May 2017. He arranged for access to his storage yard on 9 May 2017. He delivered the van to Kanati to facilitate the movement of the consignment to King Street. Even when the consignment was not in the exclusive possession of Tambakakis he was critical to the movements of it.

(d) Awad did not maintain any supervision over the consignment until he took possession in King Street.

215 Both applications for leave to appeal against sentence touch upon the significance of the role or position of an offender in offences of this kind. Tambakakis submits that the judge overstated the roles of both him and Awad and Awad submits that the judge erred in his assessment of the relativities between the applicants.

216 In relation to offending of this kind, it has been held that the role or relative position of an offender may be relevant to an assessment of the gravity of the offending and the culpability of the offender.[111] It may assist in an assessment of the relative positon of offenders where more than one person is guilty of the offence. It is not essential for a judge to know where, in an overall hierarchy, an offender sits. There is no reason to think that large scale drug offences are undertaken by organisations that are structured by rank or roles distributed according to some formal job description. Moreover, a judge is only able to sentence on the basis of the facts known to the court, and a full picture of the relative roles and responsibilities for the offending is unlikely to be known with any precision.[112]

217 The first point of significance is that the applicants were convicted of attempted possession of a border controlled substance. They were not charged with, and not to be punished for, the importation of the cocaine.[113]

218 Second, it is plain that Tambakakis took possession of the substance a very short time after it was imported. The printers containing the substance were delivered directly to the Auto Care premises and collected by Tambakakis a short time later. He retained possession up until the time they departed from the warehouse having discovered a covert device.

219 Third, although on the prosecution case Awad did not come into possession until he got into the van in King Street, he must have believed that the van contained cocaine, and he had with him equipment to package the cocaine. That is to say, his knowledge or belief that cocaine was in the van preceded him physically taking possession. It was well open to conclude, to the criminal standard, that he knew of the consignment before 10 May 2017. The judge found in his reasons for sentence that Awad was monitoring the activity undertaken by Tambakakis on 8 May.[114] On 9 May 2017, Awad was seen with the driver of the white BMW and in the vicinity of Randor Street.

220 On 10 May 2017, both Awad and Tambakakis entered the van carrying with them digital scales, a vacuum sealer and plastic bags. The judge found that both intended to be involved in the commercial movement of the cocaine. Given that both men went to the warehouse with the repackaging equipment, the fact that the boxes were opened, and given the quantity of drugs involved, the finding that the two men would be involved in the further movement of the drugs was well founded and plainly open to be made.

221 Fourth, the quantity of drugs, and the form in which they were concealed when they were taken into the possession of Tambakakis and a relatively short time later into the joint possession of both applicants, pointed to a large scale and sophisticated operation.

222 Having regard to these matters it was open to the judge to conclude that neither of the applicants were mere conduits or had only a transitory connection with the contraband. Taken as a whole, the judge was entitled to regard both of the applicants as playing a key role in the possession of a large quantity of cocaine as it entered the Australian illicit market and for the purpose of it being moved on. It was well open to the judge to find that the role played by each applicant involved foresight and planning and was motivated by the promise of substantial gain. As the judge acknowledged, it was not possible to identify with absolute precision the role played by each of the applicants, however, the steps taken by each displayed an executive function that was beyond being merely a functionary.

223 Although it was apparent to the judge that each of the two applicants had played different roles, it was open to the judge to regard them as on par with each other. That did not require any precise degree of equivalence. It was an evaluative judgment used to assess the relative criminality involved. The degree of culpability that each had for the offending was not to be reduced to a mere comparison of the period of time in which each was in possession of the drugs.

224 Once these matters are brought into focus, it becomes plain that neither of the applicants can succeed in their respective applications. There was no error in the judge's assessment that, in terms of culpability, the two applicants should be treated in the same way. That disposes of Awad's contention. Further, the judge did not overstate the role played by each or the gravity of the offending. For that reason, Tambakakis' ground also fails.

225 Each application for leave to appeal against sentence should be refused.

[1] Criminal Code (Cth), ss 11.1(1) and 307.5(1). The maximum penalty is life imprisonment.

[2] Awad required an extension of time to seek leave to appeal against sentence. Since the application for extension of time was not opposed by the respondent, we granted it upon the hearing in this Court.

[3] Ground 1, which asserted that the 'verdict was unreasonable or cannot be supported having regard to the evidence', was abandoned altogether.

[4] Criminal Code Regulations 2002 (Cth), Schedule 4, item 41, which achieved their sunset on 1 October 2019. See now Criminal Code Regulations 2019 (Cth), Schedule 2, item 43.

[7] The impugned direction is emphasised.

[8] Emphasis added to this and following passages.

[9] This appears to be a reference to the Victorian Criminal Charge Book, published by the Judicial College of Victoria. Unfortunately, the judge must have been referring to an outdated version of the 'Charge Book', since the relevant part - '4.1 - The Accused as a Witness' - had last been updated almost two years previously, on 2 October 2017, and alerted the reader to the prohibition now contained in s 44J. See [56] below.

[11] Brown v The Queen [2020] VSCA 20 (Whelan and Priest JJA).

[12] Ibid [41] (emphasis in original).

[13] Ibid [42]-[43] (citations as in original).

[14] [The text of s 44J was reproduced.]

[15] See R v Buckley [2004] VSCA 185; (2004) 10 VR 215, 231 [56] (Nettle JA); R v Haggag [1998] VSC 355; (1998) 101 A Crim R 593, 598 (Callaway JA). See also Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257, 277 [45]-[46].

[16] Brown v The Queen [2021] HCATrans 29.

[17] North Ganalanja Aboriginal Corp v Queensland (1996) 185 CLR 595, 643. See also Sir Anthony Mason, The Use and Abuse of Precedent, (1988) 4 Aust Bar Review 93, 96-8.

[18] R v Haggag [1998] VSC 355; (1998) 101 A Crim R 593 ('Haggag').

[19] Robinson v The Queen [No 2] [1991] HCA 38; (1991) 180 CLR 531.

[20] Stafford v The Queen (1993) 67 ALJR 510.

[21] Ramey v The Queen (1994) 68 ALJR 917.

[22] Jeremy Gans, Directions on the Accused's Interest in the Outcome of the Trial, (1997) 21 Crim LJ 273.

[24] R v Buckley [2004] VSCA 185; (2004) 10 VR 215, 231 [56]. See also R v McMahon [2004] VSCA 64; (2004) 8 VR 101, 114-7 [26]-[30] (Winneke P).

[25] See, eg, R v Phillips [1997] 1 VR 558, 560, a case where the trial judge declined to give the relevant direction.

[26] See also [66] below.

[27] Parliamentary Debates (Hansard), Legislative Assembly, 22 February 2017, 297 (emphasis added).

[28] See Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257, 277 [45] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[29] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 ('Weiss').

[30] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 ('Baini').

[31] Ibid 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (citations as in original).

[32] Compare Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 317 [44] in relation to the proviso to the common form criminal appeal provision.

[33] See, eg, AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at 456 [55]- [56]; Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282.

[34] Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 372-373 ('Wilde). See also Weiss, 317-318 [45]-[46] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Wilde, 373 (Brennan, Dawson and Toohey JJ); Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373, 401-2 [94] (Gleeson CJ, Gummow, Heydon and Crennan JJ).

[35] Glennon v The Queen (1994) 179 CLR 1.

[38] Ibid 9-10 (Mason CJ, Brennan and Toohey JJ).

[39] See the second paragraph from the judge's charge at [50] above.

[40] See [66] above.

[41] See, eg, Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, 105 [31] (French CJ, Gummow, Hayne and Crennan JJ) (a case concerned with the operation of the proviso).

[42] Baini, 479 [26], 481 [31]-[32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[43] See [30]-[33] above.

[44] See [31] above.

[47] At [98] and [100].

[49] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 323-4 [46]-[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations as in original) ('Baden-Clay').

[50] Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104.

[51] [1975] HCA 42; (1975) 133 CLR 82 at 104.

[52] [1911] HCA 66; (1911) 13 CLR 619 at 634.

[53] [1963] HCA 44; (1963) 110 CLR 234 at 252.

[54] [1960] HCA 2; (1960) 102 CLR 584 at 605-606.

[55] Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 661, quoted in Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104.

[56] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 637 [46] (footnote omitted).

[57] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535.

[58] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 ('M').

[60] Ibid 492-4; Baden-Clay, 329-30 [65]-[66]

[61] Awad's conviction grounds 1 and 2, and Tambakakis' conviction ground 3.1, are concerned with s 44J of the Jury Directions Act 2015 ('JDA').

[62] JDA s 1.

[63] JDA s 5(4).

[64] JDA s 5(3).

[65] Criminal Procedure Act s 276(2).

[66] (2012) 246 CLR 469; [2012] HCA 59 (French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ) ('Baini').

[67] Ibid 479 [26] (citations omitted) (emphasis in original) (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[69] Ibid 481 [32]-[33], 484 [40]; see also Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62, 103-4 [118] (Nettle J).

[71] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [42]; [2005] HCA 81; AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, 455 [52] (Gummow and Hayne JJ).

[72] Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659, 677-8 [85]; [2013] VSCA 25 (emphasis in original) (citations omitted) (Maxwell P, Weinberg and Priest JJA).

[73] Baini [2012] HCA 59; (2012) 246 CLR 469, 495 [71]; [2012] HCA 59.

[76] (2018) 264 CLR 62; [2018] HCA 7 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) ('Kalbasi').

[77] Ibid 83 [57] (Kiefel CJ, Bell, Keane and Gordon JJ).

[78] Solis v The Queen [2018] VSCA 275, [11] (Kyrou, McLeish and T Forrest JJA). See also Kalbasi [2018] HCA 7; (2018) 264 CLR 62, 87-8 [70]; [2018] HCA 7 (Gageler J), citing Jones v The Queen (2009) 83 ALJR 671, 678 [30]; [2009] HCA 17 (French CJ, Heydon, Kiefel and Bell JJ).

[79] Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257, 275-6 [42], [48]; [2011] HCA 44 (citations omitted) (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) ('Hargraves').

[80] (2018) 264 CLR 62; [2018] HCA 7 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ).

[81] Ibid 87-8 [70] (citations omitted) (Gageler J).

[82] Ibid 71 [15] (citations omitted) (Kiefel CJ, Bell, Keane and Gordon JJ).

[83] See also Hargraves [2011] HCA 44; (2011) 245 CLR 257, 277 [45]-[46] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[84] Criminal Code 1995 (Cth), ss 11.1(1) and 307.5(1). The maximum penalty is life imprisonment.

[85] Criminal Code 1995 (Cth), s 307.5(1)(c) and (3).

[86] Hargraves [2011] HCA 44; (2011) 245 CLR 257, 275-6 [42]; [2011] HCA 44 (citations omitted) (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[88] (1991) 180 CLR 531; [1991] HCA 38 (Mason CJ, Brennan, Deane, Toohey and McHugh JJ)('Robinson').

[90] (1998) 194 CLR 202; [1998] HCA 43 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

[91] Ibid 226 [74]. See also, Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, 105 [31]; [2012] HCA 14 (French CJ, Gummow, Hayne and Crennan JJ).

[92] See Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ).

[93] Hargraves [2011] HCA 44; (2011) 245 CLR 257, 276-7 [40]-[41]; [2011] HCA 44 (citations omitted) (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[94] (1978) 140 CLR 364; [1978] HCA 39 (Barwick CJ, Gibbs, Stephen, Mason, Jacobs, Murphy and Aickin JJ).

[95] [1998] VSC 355; (1998) 101 A Crim R 593 (Phillips CJ, Callaway and Kenny JJA) ('Haggag').

[97] Cf. M (1997) 99 A Crim R 464, 480-2 (citation as in original).

[98] Haggag [1998] VSC 355; (1998) 101 A Crim R 593, 598 (emphasis in original).

[99] (2004) 8 VR 101; [2004] VSCA 64 (Winneke P, Buchanan JA and Coldrey AJA).

[103] (2004) 10 VR 215; [2004] VSCA 185 (Winneke P, Charles and Nettle JJA).

[106] [2020] VSCA 20 (Whelan and Priest JJA).

[107] See Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 372-3; [1988] HCA 6 (Brennan, Dawson and Toohey JJ).

[110] A proposed ground of manifest excess was abandoned at the hearing.

[111] R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ)('Olbrich').

[112] Crimes Act 1914 (Cth) s 16A(2)(a); Olbrich (1999) 199 CLR 270, 278 [17]; [1999] HCA 54 (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

[113] Olbrich (1999) 199 CLR 270, 279 [18]; [1999] HCA 54; R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ).