CRIMINAL LAW - Sentence - Murder - Parity - Disparity due to assistance given to authorities by co-offender.

1 After a trial in the Supreme Court, the applicant was found guilty on a count of murder and a count of intentionally causing serious injury. He was acquitted on a count of attempted murder. The applicant was sentenced to life imprisonment. A minimum term of 30 years was fixed before the applicant was to be eligible for parole.

2 The applicant seeks leave to appeal against his conviction and sentence.

3 The Crown case was that Carl Williams and Tony Mokbel engaged XP to kill Lewis Moran, a gangland rival of Williams and Mokbel. The agreed price was $150,000.

4 XP enlisted Noel Faure and the applicant. On 31 March 2004, the applicant Noel Faure and XP drove from Geelong to Melbourne, equipped with three firearms and two balaclavas.

5 Lewis Moran was in the habit of attending the Brunswick Club, a licensed gambling institution, where he occupied the same position on the first floor. The applicant and XP had previously attended at the Club and knew of Moran's habits. The plan was that the applicant would shoot Moran, while Noel Faure would stand at the entrance to the Club to cover his back. XP was to drive the getaway vehicle.

6 At about 6.30 pm, the applicant, XP and Noel Faure looked through the windows at the front of the Brunswick Club and saw Moran in his customary position. XP waited in the car in a laneway at the rear of the Club while the applicant and Noel Faure, wearing coats to conceal two pistols and a shotgun, walked around to the front of the Club. As they neared the club, they pulled balaclavas down to cover their faces. The applicant ran ahead of Noel Faure, bounded up the stairs of the Club, carrying the shotgun, which he pointed in the direction of Lewis Moran.

7 Upon seeing the applicant, Moran turned and ran down a corridor and through the area of the Club in which gaming machines were situated. The applicant caught up with him as he left the gaming machine area. Moran ran into the manager of the premises. She grabbed hold of him to steady herself and the applicant appeared, holding the shotgun. The shotgun jammed and the applicant resorted to a pistol. The applicant bent down as Moran slipped to the ground. At close range, the applicant shot Moran twice in the head.

8 Herbert Wrout had been standing with his friend, Lewis Moran, when the applicant entered the room. Wrout backed away in the direction of Noel Faure, who was standing in the doorway. Faure shot Wrout in the arm and chest.

9 The applicant reappeared from the rear of the premises and joined Noel Faure. Together, they left the club and went to the laneway where XP was waiting with the motor car. The three drove back to Geelong in two separate cars.

10 Lewis Moran was killed and Herbert Wrout was severely injured. He suffered damage to his liver, kidney and lung and his spleen was removed. He was on life support for some time and stayed in intensive care until 24 April 2004.

11 The principal Crown witness was XP. His evidence was supplemented by evidence from witnesses to the events at the Brunswick Club, film from internal security cameras at the club and intercepted conversations between XP and the applicant.

13 Olga Vlahos, the applicant's sister, gave evidence that, shortly after midday on 31 March 2004, she picked up her mother and her aunt from her mother's house in Fairfield to take them to Tullamarine Airport, where they were to board a plane and fly to Greece for a holiday. She said that the applicant arrived at the house to farewell his mother and aunt. She also said that she observed the applicant's mobile phone, together with the applicant's keys, on the dining room table when she returned to her mother's house from hospital and that she saw the phone still there the next day.

14 Ms Vlahos said that her mother collapsed at the airport and was taken by ambulance to the Royal Melbourne Hospital. The witness went to the hospital and took her mother and her aunt to the house in Fairfield. They arrived there at about 6.30 pm. The applicant was at the house. Ms Vlahos left the house at about 8.40 pm after asking the applicant to stay the night with his mother and aunt. Ms Vlahos said that while she was at her mother's house she answered a phone call from Julie Hayes, the girlfriend of the applicant. She said she did not answer any other phone calls.

15 Marcia Beselas, a niece of the applicant, gave evidence that on 31 March 2004, at 6.21 pm, she telephoned the house of the applicant's mother and spoke to the applicant.

16 Russell Goldsmith, a sound engineer, said that he received a compact disc from Victorian Police Forensic Services recording a statement, which the prosecutor said was XP saying to the applicant: 'Start using your time instead of worrying about popping Lewie Moran'. Mr Goldsmith said he employed various techniques to improve the sound quality of the disc. The record was played to the jury.

17 The first ground of the application for leave to appeal against conviction is as follows:

The trial miscarried as a consequence of the learned trial judge having, in her charge to the jury, impermissibly introduced a new theory which undermined the applicant's case on a key piece of evidence namely the identity of the person who received a call on the applicant's phone at 18.10 on 31 March 2004.

18 Counsel for the applicant asserted that the Crown case was that at 6.10 pm on 31 March 2004, the applicant received a call on his mobile telephone from his girlfriend, Elizabeth Colic. There was no evidence to show who answered the call, although there was evidence of the call being made. In his closing address, defence counsel sought to gain an advantage from this evidence and the Crown's apparent position, contending that, in combination with other evidence, there was an available inference that the applicant was at his mother's house at 6.10 pm. If that was so, it would cast doubt upon the evidence of XP that, on 31 March 2004 from about 5.15 pm until the murder occurred at about 6.30 pm, the applicant was in his company.

19 Although Ms Colic was not called as a witness, there was evidence that she passed on a message to a friend at 6.12 pm that the applicant's mother was unwell. Until counsel's closing address it had not been suggested that the applicant was the source of the information that his mother was unwell and therefore must have been at his mother's house, for otherwise he could not have known of his mother's illness and could not have communicated that fact to Ms Colic. Defence counsel repeated in a variety of ways that the applicant could be the only source of information that Colic passed on to her friend.

20 The evidence given by Ms Beselas, the applicant's niece, was somewhat inconsistent with the defence hypothesis, for she gave evidence that she rang the applicant's mother's home telephone number at 6.21 pm, a fact verified by telephone records. She testified that the applicant answered the telephone and, upon Ms Beselas making an enquiry of the applicant's mother's state of health, the applicant said that he did not know, as his mother had not come home yet.

21 In his evidence XP said that the applicant did not have his mobile phone with him immediately prior to or during the period of the murder as they had agreed to leave their mobile phones at home. He said that he later learned that the applicant had left his mobile phone at his mother's house. He said that he did not know that the applicant's mother was unwell until he returned home some hours after the murder.

22 The trial judge canvassed the matter in her charge:

Now I have to say, ladies and gentlemen, there are two matters on which I intend to comment because I think there was some confusion in terms of what was said. The first is this, that [XP] says there were no calls received by Goussis on his phone at the home of Mahi Goussis [the mother of the applicant] then that means that Ange Goussis was at Mahi Goussis's home. Can I say all that evidence indicates is that the phone may have been at Mahi Goussis's home not necessarily the accused's and I think that point has been made in respect of many other calls, that what it shows is the location or where the phone may be. Here it does not even show the location but the phone does not always have to be with the person. So that is the first thing, that is a comment of mine.

...

This is again the second area on which I am going to comment because you have the evidence that at 6.10 Betty Colic rings the Goussis mobile. What you do not have is any evidence of who answers that phone. And it was put, it was put at a later stage, which I will get to, that that is a call at which Goussis must have passed on to Betty Colic that his mother was unwell because she has then rang Julie Hayes two minutes later, and the defence say that that is where Julie Hayes gets the information about Mahi Goussis being unwell.

It depends upon what time you find that Olga Vlahos returned from the hospital with her mother. If she has returned by six o'clock and Mr Goussis has left his phone at the premises, that he is not there, equally she is able to have answered the phone, or his mother, or someone else. But you do not know that, the same as you do not know that he answered it.

What you need to do is look at the phone records in the afternoon relating to the Mahi Goussis phone and the Evangelos Goussis phone and see if there is anything to indicate a call coming in that would have informed Evangelos Goussis of the state of health of his mother prior to Olga Vlahos coming home because otherwise the question you would need to ask yourself is, well, how would he know about Mahi Goussis's state of health? All right. So it is put that it must be him telling Betty Colic. Accordingly, there must be information on which he could be actually informing her, but that is a matter for you to look at and for you to assess.

...

At 6.10 Liz Colic has called Ange, the source, the person that she is talking to at 6.10. I have already made the comment that she is talking to the phone, but we do not know in respect of the person - and that applies, actually, to every telephone, mobile telephone call. All it is, and I should remind you of this, is it is evidence that that phone has received or made a call. Not evidence that the person, of a particular person. Normally says some visual evidence to say, 'look, I was standing there, I saw the person.' All right.

23 In these terms, the trial judge introduced a possible explanation for the evidence of the telephone call to the applicant's phone, which had not been propounded by the Crown. The only case advanced by the prosecutor was that the phone was answered by Goussis while he was in the company of Faure.

24 The immediate reaction of counsel for the applicant was to seek a redirection. Counsel urged the trial judge to tell the jury that the defence would say that if a person other than the applicant had answered the phone, Ms Colic would have telephoned his house in Geelong. The trial judge acceded to this request. The following day, counsel for the applicant sought the discharge of the jury, saying:

Your Honour has by that comment introduced a theory into the case that is not the Crown theory, indeed quite the antithesis of it, and not a theory that I had to meet ...

25 In this Court, counsel for the applicant submitted that the introduction of the new theory that another person answered the applicant's phone at his mother's house was unfair to the applicant and thereby caused a substantial miscarriage of justice. The applicant's counsel, so it was said, was denied the opportunity to call Ms Colic and to advance argument in final address.

26 A judge in criminal proceedings may comment or give directions on matters tending towards conviction, but not canvassed by the prosecution, provided that will not place the accused at a tactical disadvantage so as to make the trial unfair to him.[1] In the circumstances of this trial, I do not think that her Honour's statements caused unfairness to the applicant.

27 The trial judge advanced the theory that the applicant did not have his phone with him and another person answered Ms Colic's call as a possibility, not as a conclusion favoured by the trial judge. In so doing, her Honour articulated a view of part of the evidence that was clearly open and would have been apparent to any juror who reflected on the matter. There was no evidence that the applicant had his mobile phone with him at the time Ms Colic called. The only evidence, that of Faure and Olga Vlahos, was that the phone was at Fairfield. The impugned statements by the trial judge were limited to an obvious explanation for one piece of evidence. Her Honour did not seek to recast the Crown case or introduce a new form of legal liability or basis of conviction.[2] Nor did her Honour advance an alternative factual scenario based upon rejection of any evidence led by the Crown. I do not think that it is unfair to fail to draw counsel's attention to a risk of a finding being made where the risk necessarily inheres in the issues to be decided or in the evidence.[3]

28 A trial judge may in some circumstances direct a jury that there are competing inferences that may be drawn from established facts. To do so is not to introduce a new theory or change the Crown case where the risk of the competing inference is inherent in the evidence. A trial judge need not necessarily confine the jury's consideration to those inferences that the parties have chosen to identify. In this case, the trial judge considered it appropriate to identify a prominent competing inference to that raised by defence counsel in his closing address, which the jury might also consider. In doing so, I do not consider that her Honour acted unfairly to the defence for the competing inference which she invited the jury to consider was clearly open. The risk the jury might be invited to consider the inference was inherent in the way in which the trial unfolded.

29 Counsel for the applicant did not advance the possibility that the applicant answered the phone at his mother's house until his closing address to the jury. Defence counsel had earlier decided not to call evidence from Ms Colic to support the theory he had advanced in final address. At the conclusion of the judge's charge, counsel for the applicant did not seek to re-open his case.[4]

30 The applicant's argument rests upon the assertion that the Crown case was that the applicant had spoken to Colic at 6.10 pm. In fact, the prosecutor did not appear to necessarily accept that state of affairs. The prosecutor asked the jury rhetorically whether it was just a coincidence that despite the applicant's frequent use of his mobile phone, the last use of the phone was the phone call received at 6.10 pm. He invited the jury to conclude that the applicant had ceased using his phone to avoid being traced. He repeatedly spoke only in terms of 'apparent' telephone contact between Colic and the applicant at 6.10 pm. He said that if it was true that the applicant was at his mother's house on the afternoon and evening of the murder 'then when Colic seemingly spoke to him ... he surely would have told her where he was', but the evidence showed that there were repeated attempts by Colic in the hours after the murder to try and locate the applicant, apparently without success. The prosecutor pointed out that none of Colic's phone calls were to the applicant's mother's house.

31 While it was a legitimate forensic decision not to reveal at any earlier stage than his final address the process of inferential reasoning by which the jury were invited to conclude that the applicant was not at the murder scene, that course carried with it the risk that an alternative inference, which was open, might be used to reject the defence hypothesis. The alternative inference was that the applicant's mobile telephone was not in his possession at the time of the phone call by Ms Colic but it had been left at his mother's house and someone else informed Ms Colic that the applicant's mother was unwell. Defence counsel was apparently alive to the risk, for it was disclosed in the course of the appeal that counsel chose not to call evidence relevant to the competing inference or to highlight it in such a way that might have invited cross-examination by the prosecutor. Disclosure of the argument, which was reserved until closing address, would have exposed the fragility of the inferential reasoning advanced by the defence.

32 In all the circumstances, I am not persuaded that the trial judge's comment or direction produced a substantial miscarriage of justice.

The trial miscarried as a consequence of the learned trial judge having erred in directing the jury that evidence of the presence of the applicant at the Brunswick Club Hotel on (a) 24 and 28 March 2004 and/or (b) 27 March 2004, was capable of corroborating the evidence of XP.

34 XP gave evidence that the applicant went to the Brunswick Club on 24, 27 and 28 March 2004 in order to familiarise himself with the premises pursuant to a plan to murder Moran there. On 24 and 28 March, there was security camera film taken at the Club depicting the applicant.

35 Counsel for the applicant submitted that the evidence was incapable of corroborating Faure's evidence because it did not indicate that the applicant was present at the Club pursuant to a plan to murder Moran. The mere presence of the applicant was said to be 'intractably neutral'.[5] XP's evidence that the applicant was at the club as part of the plan could not be used as corroboration.

36 In my opinion, the evidence was capable of supporting or strengthening the evidence of XP and connecting the applicant with the murder of Moran.[6] The applicant lived in Geelong. He was not a member of the Brunswick Club. Moran was in the habit of attending at the Club and standing in a particular place. The murder was carried out a few days after the applicant's visits. The applicant's visits were short. He was recorded in an intercepted conversation with Faure after the murder saying that he 'didn't hang around' at the Club.

37 Corroborative evidence need not, by itself, have the effect of proving guilt. The evidence may have a degree of consistency with the respective versions contended for by the prosecution and the defence, but it must be capable of being regarded as more consistent with guilt than with innocence.[7] I consider that the evidence of the applicant's visits to the Brunswick Club satisfied this requirement.

The trial miscarried as a consequence of the learned trial judge having erred by allowing the Crown to suggest to the jury they could hear [XP] say to the applicant 'start using your time instead of worrying about popping Louie Moran' on a listening device in circumstances where :

(a) the words were incapable of being heard;

(b) the meaning of the words was equivocal; and/or

(c) the prejudicial effect of the evidence outweighed its probative value

39 Counsel for the applicant therefore relied on the fact that the trial judge said that she could not hear the word 'Moran'. This point was particularly relevant, so it was said, as the applicant and XP were on remand for the murder of Lewis Caine when the conversation was recorded. XP was not asked to confirm the Crown's construction. Counsel for the applicant submitted that the words were equivocal in that they were capable of referring to a concern about the police investigation into the murder of Lewis Moran, regardless of whether the applicant committed the crime or not. Counsel said that in light of the difficulties in determining the words spoken and their meaning, the evidence ought to have been excluded as its probative value was outweighed by its prejudicial effect.

40 Counsel for the applicant sought to exclude the evidence at trial. The trial judge refused to do so. She said that the questions of the words uttered and their meaning were for the jury to determine, although she did say, 'I do not believe [the jury] should be entitled to use it as a basis of corroboration, and that is because I do not think that it is really unequivocal enough as required.'

41 We were invited by counsel to listen to a recording of the conversation. We have done so. In my view, the words contended for by the Crown are capable of being deciphered. The question of which words were uttered was properly a jury question. The meaning of the words was also a matter for the jury to determine by considering the words in the context provided by the rest of the evidence.[8]

The trial miscarried as a consequence of the learned trial judge having erred by referring to evidence incapable of corroborating the evidence of XP as 'supportive' of his evidence in a manner likely to have led to impermissible use of non-corroborative evidence.

43 The trial judge ruled that the statement recorded by the listening device was incapable of corroborating XP. Nevertheless, her Honour summarised the Crown case in terms which suggested that the evidence was 'supportive' of the evidence of XP. In her directions as to corroboration, the trial judge said that corroborative and supportive evidence were different concepts, but tended to use the terms interchangeably in other parts of her charge.

44 Counsel for the applicant submitted that by describing the listening device evidence as 'supportive' of the evidence of XP, the trial judge elevated it to a status which she had earlier ruled it did not have, that is, a capacity to corroborate the evidence of XP.

45 The trial judge did say, at one point in her charge:

My role is to distinguish between evidence that is capable only of amounting to supporting evidence and evidence that is capable of mounting to corroboration, they are two different things.

Seen in isolation, this statement had a tendency to confuse the jury. The distinction the trial judge sought to draw was false.[9] The trial judge then said, however:

In this case I direct you that the evidence that is capable of amounting to corroboration is, firstly, the visit of Evangelos Goussis to the Brunswick Club alone in the afternoon of 24 March 2004. Secondly, the visit of Evangelos Goussis to the Brunswick Club with [XP] on the evening of 24 March 2004. Third, the visit of Evangelos Goussis to the Brunswick Club alone on 27 March 2004. Fourth, the visit of Evangelos Goussis to the Brunswick Club alone on 28 March 2004. Fifth, recreation and/or the calling of a false alibi for his whereabouts on 31 March 2004.

The trial judge referred to the intercepted conversation, together with other evidence, as supporting the Crown case. This was done in the course of instructing the jury that they were to consider all the evidence as a whole.

46 When the impugned parts of the charge are placed in context, I think that the jury would have clearly understood that the evidence corroborating XP did not include the intercepted conversation.

A miscarriage of justice has occurred as a consequence of the discovery of fresh evidence, namely, a letter dated 18 October 2004 signed by [XP] which states that the applicant was not involved in the crimes the subject of the appeal.

48 In an affidavit filed in this Court, Olga Vlahos affirmed that on 14 August 2008 she discovered a letter apparently written by XP. The letter was in the following terms:

Tuesday 18.10.04

Due to threats to my wife's life and health I have decided to make false confessions to police implicating myself in Lewis Moran's death. I intend to implicate no one else except myself. Evangelos Goussis is innocent of Lewis Moran's murder. Also innocent of Caines murder. I will name no names to police except my own.

Signed [XP]

Tues 18.10.04

This is all designed to expose a police conspiracy and prove our innocence and stop torture to me Goussis and my wife also and stop death threats towards my family and Goussis family.

[XP]

Ms Vlahos affirmed that she contacted the applicant's solicitor and counsel on 16 August 2008 and provided the letter to the solicitor. The date upon which Ms Vlahos said she found the letter was some ten weeks after the conclusion of the trial.

49 Fresh evidence will not be received if, with reasonable diligence, the evidence could have been produced at trial. Ms Vlahos' affidavit stated baldly, 'On 14 August 2008 I discovered a letter purportedly from [XP]'. About an hour before the commencement of the hearing of the appeal, the applicant's solicitor served upon the respondent another affidavit by Ms Vlahos in which she deposed that at the time of the applicant's trial, she picked up a box of the applicant's possessions from Barwon Prison. On 14 August 2008, Ms Vlahos looked through the box and found the letter in a book in the box. Ms Vlahos said that her brother told her that he and XP used to exchange books in prison and that the applicant had not seen the letter.

50 Counsel for the respondent objected to the Court receiving the second affidavit. He said that he was not in a position to meet it. I can only suppose that the applicant's advisers did not immediately appreciate the deficiency in Ms Vlahos' first affidavit.

51 The recent creation of the affidavit does occasion unfairness to the respondent. In my view, however, the affidavit does not advance the applicant's case. According to Gibbs CJ in Gallagher v R[10] further requirements of fresh evidence are:

[W]hether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict.

Mason and Deane JJ expressed the latter requirement in the following terms:

The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.[11]

52 The likely impact of the letter upon the jury is to be evaluated in the light of other statements made by XP at about the time the letter was written. In a record of interview made on 21 October 2004, XP took the blame for shooting Moran and made a similar confession in an intercepted conversation in prison and in a re-enactment of the crime on 22 October 2004. Those statements were not accepted by the police as reliable at the time they were made and they were later repudiated by XP when he gave evidence at the applicant's trial. The confessions by XP were the subject matter of substantial cross-examination at the trial. I do not accept there is a significant possibility that the jury would have acquitted the applicant if an additional attack had been mounted on the credit of XP based upon the letter.

A miscarriage of justice has occurred as a consequence of the discovery of fresh evidence namely telephone intercepts, CAD data and evidence from the trial of Antonios Mokbel for the murder of Lewis Moran, that demonstrate that Antonios Mokbel did not call XP at 11.17 on 3 April 2004

54 The Crown contended that at 11.17 am on 3 April 2004, four days after Moran's murder, Mokbel called XP from a public telephone box in Coonans Road, Pascoe Vale, for the purpose of arranging a meeting at which XP would be paid for Moran's murder. XP gave evidence that he had received such a phone call. Evidence was led at the trial of Mokbel in September 2009 that when the phone call was said to have been made, Mokbel was in Chadstone and could not have made a phone call from Coonans Road. Counsel for the applicant submitted that the evidence could have been used to attack XP's credit and would have denied the prosecution the comfort the prosecution sought to derive from the phone call as supportive of XP.

55 In my opinion, the fresh evidence was unlikely to have had any significant effect upon the jury's deliberations. The evidence only had sting for the Crown if XP was to be regarded as unequivocally asserting that he received the call on 3 April 2004. In fact, XP's evidence was far from unequivocally clear. He said that 'he believed' he received the phone call on 'a Saturday morning'. When asked which Saturday, he said:

I'm not too sure it was a Saturday. I'm pretty sure it was the Saturday after the crime was committed. I'm not too sure.

56 The telephone call was not an important part of the Crown's case against the applicant and, in the light of XP's uncertainty as to the date of the call, in my opinion, there was no real possibility of an acquittal even if the evidence of the phone call had been led at the applicant's trial.

57 The final ground of the application for leave to appeal against conviction is based upon the failure of the Crown to disclose the evidence that emerged in the course of Mokbel's trial, which established that Mokbel could not have telephoned XP from Coonans Road. As I think that the evidence had no real cogency, I am of the opinion that any failure on the part of the Crown to disclose the evidence to the applicant occasioned no miscarriage of justice.

58 For the foregoing reasons, I would dismiss the application for leave to appeal against conviction.

59 I turn to the application for leave to appeal against sentence, which is based upon the sole ground that the sentence imposed upon the applicant breached the principle of parity. The relevant comparison was that between the minimum terms imposed upon XP and the applicant.

60 A sentence of life imprisonment with a minimum term of 19 years' imprisonment was imposed upon XP for the murders of Moran and Lewis Caine. The applicant had earlier received a sentence of 20 years' imprisonment and a minimum term of 15 years' imprisonment for the murder of Lewis Caine. On the count of murdering Lewis Moran, the applicant was sentenced to life imprisonment and on a count of intentionally causing serious injury to Herbert Wrout, the applicant was sentenced to 12 years' imprisonment. The sentencing judge directed that the appellant was to serve a minimum term of 30 years' imprisonment 'from this day'. When he was sentenced, the applicant had been in prison for four years and nine months. Accordingly, the effective minimum term was 34 years and nine months.

61 In the course of her sentencing remarks, her Honour referred to differences between the roles of the applicant and XP and the latter's co-operation with authorities, and said:

It is not possible to maintain parity due to these major distinctions, but I have kept in mind the sentence imposed upon XP when determining the issue of whether or not to impose a minimum term and if so what that term would be.

The principle of parity still applies to co-offenders in different circumstances in that the sentences should appropriately reflect the differences. I take her Honour to have used the word 'parity' in the impugned remark as meaning equality.

62 When Moran was murdered, the applicant was aged 36 years and XP was aged 52 years.

63 Counsel for the applicant submitted that XP's role in the offending was greater than that of the applicant, as XP organised the murder. He had recruited the applicant and directed the applicant in the course of the operation. Counsel said that XP's prior convictions were more serious than the applicant's. The applicant had previously been convicted of attempted murder and drug and firearms offences. XP's prior convictions included two convictions for manslaughter, armed robbery and robbery in company.

64 On the other hand, XP was in poor health when he was sentenced and the applicant was guilty of the additional offence of intentionally causing serious injury to Herbert Wrout. More importantly, XP pleaded guilty and was the principal Crown witness in the applicant's trial, thereby fulfilling a promise made to the authorities at the time he was sentenced. Both circumstances warranted significant abatement of punishment. As Callaway JA observed in R v Duncan,[12] '[t]he discount for assistance may be very considerable indeed.' Having regard to the importance of the assistance which XP gave to the authorities, I do not consider that the disparity in the sentences would engender in the applicant a justifiable sense of grievance which would be shared by an objective observer.

65 Accordingly, I would dismiss the application for leave to appeal against sentence.

66 I have had the benefit of reading in draft the reasons of Buchanan JA and agree for the reasons he gives that the application for leave to appeal against conviction should be refused.

67 There are two grounds on which I would make some additional observations.

68 The right to a fair trial includes the right of every accused person to know the case which the prosecution seeks to advance at trial.[13] The principle is derived from the celebrated dictum of Dixon J in Johnson v Miller,[14] and has been applied consistently throughout Australia in the context of a prosecutor presenting a case at trial which is addressed by counsel for the accused, but who is then confronted with another case suggested by the trial judge in the course of the charge to the jury.[15] A conviction will ordinarily be set aside where the trial judge, without notice which will enable any unfairness to be avoided, advances a new, different or alternative basis for conviction to that advanced by the Crown.

69 Where either party relies upon circumstantial evidence and inferential reasoning, the trial judge is required to give the jury a conventional direction concerning the process by which the jury may draw inferences. If a party relies upon an inference as being relevant to proof of a fact in issue, there will be circumstances in which the trial judge may consider it necessary draw to the jury's attention that there are competing inferences. The jury is not confined to those inferences which the parties have identified. It is the evidence that dictates the inferences the jury may draw from the established facts.

70 Here, the ultimate fact which the Crown sought to prove, largely by direct evidence, was that the applicant shot the deceased. It was therefore the Crown case that at the time of the call by Ms Colic, which mobile phone records established was received on the applicant's mobile phone, he was then in the company of XP and in the vicinity of the murder scene. It was implicitly and undoubtedly part of the Crown case that any inference inconsistent with those facts should be rejected.

71 The Crown accepted in closing the 'apparent' inference that the phone call was received by the applicant. The inference was no part of the Crown's proof of the applicant's guilt. The Crown did not seek to establish this inference as part of its case. It was not the only possible inference that was open that was consistent with the Crown case.

72 The Crown had declined to call Ms Colic on the basis that she was an unreliable witness. She had made a statement to police in which she said that she did not see or speak to the applicant from about 10.30 am on the day of the murder until about 8.00 to 8.30 pm when the applicant called her on his mobile phone. On the appeal counsel for the applicant stated, in very vague terms, that he had determined not to call her because it would open up areas that he preferred to avoid.

73 The evidence of XP, Ms Vlahos and Ms Beselas, together with the various phone records tendered, meant that the inference was one plainly open that the applicant had left his phone at his mother's home and someone else had answered the mobile phone. To draw attention to this obvious inference did not advance a new, different or alternative Crown case. Defence counsel, astute to the alternative inference that was open on the evidence, determined not to foreshadow, prior to closing address, the path of reasoning he would invite the jury to follow if they drew the inference from the evidence that the applicant had possession of his phone and it was he who spoke to Ms Colic. That did not mean that the jury were foreclosed from considering an alternative inference. Once the jury were invited to consider a hitherto undisclosed path of reasoning that, as it was the applicant who spoke to Ms Colic, then he could not have been at the murder scene, there was no procedural unfairness in drawing the existence of a competing inference to the jury's attention as it arose from the evidence and was inherent in the issues to be decided.

74 Under ground 2 the applicant complained that his visits to the Brunswick Club in the week preceding the murder were incapable of corroborating the evidence

of XP. The contention that the visits were intractably neutral misconceives the essential quality of corroborative evidence. In both R v Kuster[16] and R v Sumner,[17] emphasis was given to the fact that evidence, to be capable of constituting corroboration, need not be probative of the fact that the accused committed the crime. It is sufficient if it strengthens the accomplice's evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice. It must render that person's evidence in a material particular more probable.[18]

75 Each visit to the Club was cogent corroborative evidence. The applicant had no association with the Club and it was not suggested during the trial that he had been a user of the facilities prior to the particular week he had attended. The visits are more consistent with guilt than innocence and possess some independent thrust so as not to be intractably neutral in their effect.[19] Moreover, the visits to the Brunswick club did not have to be considered in isolation. The probative force of the three visits rendered it unnecessary to consider the degree of probability of each item of evidence separately.[20]

76 I would also refuse the application for leave to appeal against sentence for the reasons given by Buchanan JA.

[1] R v Solomon (1980) 1 NSWLR 321; R v Tran [2005] VSCA 195, [31], [33] and [37] (Vincent JA).

[2] Cf R v Franco [2003] SASC 140; (2003) 139 A Crim R 228; R v Sieders and Somsri [2008] NSWCCA 187; (2008) 72 NSWLR 417.

[3] Cf Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, [101], (McHugh J).

[4] In exceptional circumstances, a trial judge may permit evidence to be called after the charge to the jury has been completed. See R v Bodi [1969] VicRp 6; [1969] VR 36; R v Langer [1972] VicRp 112; [1972] VR 973; R v Mlaka [1971] VicRp 47; [1971] VR 385. See also Dryburgh v R [1961] HCA 54; (1961) 105 CLR 532.

[5] R v Stephenson (1978) 18 SASR 381; R v Nanette [1982] VicRp 8; [1982] VR 81, 86 (McInerney J).

[6] Doney v R [1990] HCA 51; (1990) 171 CLR 207; R v Ferguson [2009] VSCA 198; [2009] 24 VR 531, 558-560 (Maxwell P, Buchanan and Weinberg JJA).

[7] R v Kerim [1988] 1 Qd R 426, 447 (Macrossan J).

[8] Burns v R [1975] HCA 21; (1975) 132 CLR 258, 261 (Barwick CJ, Gibbs and Mason JJ).

[9] R v Cummins [2004] VSCA 164; [2004] 10 VR 15, 27 (Ormiston J); R v Kerim [1988] 1 Qd R 426, 462-3 (McPherson J).

[10] [1986] HCA 26; (1986) 160 CLR 392, 395-6.

[11] Ibid 402. Gibbs CJ similarly agreed with this formulation, at 399.

[12] [1998] 3 VR 208, 215. See also R v Rostom [1996] VicRp 60; [1996] 2 VR 97, 103-4 (Charles JA).

[13] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467.

1. [15] R v Falcone [2008] VSCA 225; (2008) 190 A Crim R 440, 451-2 (Vickery AJA); Carr v The Queen [2000] TASSC 183; (2000) 117 A Crim R 272; King v The Queen [1986] HCA 59; (1986) 161 CLR 423; R v GAS [1998] 3 VR 862; R v Pureau (1990) 19 NSWLR 372; R v Solomon [1980] 1 NSLWR 321; Walsh v The Queen [1996] TASSC 59; (1996) 6 Tas R 70.

[16] [2008] VSCA 261; (2008) 21 VR 407.

[17] [2010] VSCA 221.

[18] R v Baskerville [1916] 2 KB 658, 667 (Lord Reading CJ); R v Kendrick [1997] 2 VR 699, 708.

[19] R v Sumner [2010] VSCA 221, [40]-[41].