That there is Fresh and compelling evidence establishes that there has been a substantial miscarriage of justice.

Particulars:

There is fresh and compelling evidence that the police investigation, the trial and appeal that followed were compromised by:

(a) Serious police misconduct and/ or

(b) Prosecutorial misconduct and impropriety

(c) Non compliance with the duty of disclosure

(d) Fundamental errors by the defence amounting to defects and /or omissions

1. In our view, the proposed ground is completely devoid of merit. Leave to appeal must be refused. It is necessary that we provide reasons. They follow.

1. Before turning to the applicant's submissions, it is convenient to summarise the evidence at trial.
2. In the morning of 25 September 2018, at about 12.30 am, three intruders broke into a house in Craigieburn occupied by Mr Dassidy Bell and Ms Eden McElligott. O'Reilly admitted he was one of the intruders. The jury at the applicant's trial were satisfied that he and Harika were the other two intruders.
3. There was evidence in the trial that, for a month or so before 25 September 2018, O'Reilly believed that Mr Bell and Ms McElligott had a large sum of cash, the proceeds of drug sales, at their home in Craigieburn, and he wanted to steal it. On 4 September 2018, O'Reilly sent a text message to Harika, saying he would visit him 'a bit later'. Harika replied, 'What does the Craig burn house mean?'.
4. Shortly before 25 September 2018, O'Reilly communicated with Krystal Varvatsoulis concerning a debt of $600 that he owed her. O'Reilly told Ms Varvatsoulis that he intended to obtain the money to repay her from some 'coke dealers' who lived in Craigieburn. He also told Ms Varvatsoulis that he needed to find someone who would drive him to Craigieburn and assist him in getting the money.
5. On the evening of 24 September 2018, the applicant and Harika were at Harika's home in Lalor with their partners, Leah Doody and Courtney Matthews. Following text messages between O'Reilly and Harika, sometime after 9.45 pm the applicant and Harika left Lalor to collect O'Reilly. The prosecution case was that all three then travelled to Mr Bell and Ms McElligott's Craigieburn premises.
6. Not long after midnight, Mr Bell woke to the sound of his dog barking and some banging noises. He went to investigate, while Ms McElligott went to the ensuite off their bedroom. The prosecution case - accepted by the jury - was that the applicant, Harika and O'Reilly broke into the house. According to the prosecution, the applicant was wearing a 'hoodie' and holding a crowbar; Harika was wearing a balaclava with duct tape attached and holding a hatchet; and O'Reilly was wearing a balaclava and holding a makeshift sword. The three remained in the premises for about 40 minutes, threatening and assaulting Mr Bell, including inflicting a deep cut to his arm which required surgery.
7. When the three intruders left the house, they stole Mr Bell's black 2013 Chrysler sedan. In it they took a large number of items stolen from the house, including a Playstation 4; a Macbook Pro; a Gucci tote bag; a Louis Vuitton wallet with various personal cards and bank cards; clothing; jewellery; $6,000 cash; Milwaukee tools; and other valuables. They also took Mr Bell's dog, Villain, telling Mr Bell that, if he wanted his dog back, he should leave $20,000 outside his gate.
8. At about 3.00 am, the applicant, Harika, O'Reilly and another male, Sean Ware, whom they had collected on the way, arrived at Ms Varvatsoulis' home in Heidelberg West. O'Reilly paid Ms Varvatsoulis the $600 that he owed. A man called Batsakis was also with Ms Varvatsoulis at her home. When the applicant and the others left sometime after 6.45 am, Harika offered Mr Bell's dog to Ms Varvatsoulis, and it was left with her.
9. Later, when Harika arrived back at his home in Lalor, he woke his partner, Ms Doody, and asked her if she wanted some food. She did not. He left again soon after, and, at 8.48 am, he and the applicant were captured on CCTV footage in the stolen Chrysler sedan at a Hungry Jacks store in Bundoora. Harika, who was in the driver's seat, was seen to be holding a gold chain belonging to Mr Bell and wearing a gold watch.
10. When Ms Doody awoke again at Harika's house, she heard voices in the front yard. When she opened the door, she saw tools and boxes, and Harika holding a hose, washing Mr Bell's car, which was parked in the driveway. Her evidence was that the applicant handed her a watch, black purse and plastic bag containing jewellery (these items having been stolen in the course of the home invasion). Ms Doody gave evidence that the applicant told her to 'put them away', so that she 'threw' the items into her handbag.
11. A little before 9.15 am, police attended Harika's home. They arrested Harika and Ware, and located Mr Bell's stolen Chrysler. Police also found items stolen from Mr Bell and Ms McElligott inside Harika's house. The applicant fled the property, but was arrested a few minutes later in a nearby street, where he was found to be in possession of a small amount of methylamphetamine. O'Reilly, who was not at Harika's house, was arrested a few days later at his house in Montmorency.

1. In his written submissions in support of his proposed ground of appeal - apparently prepared without the assistance of a trained legal practitioner - the applicant first submitted that a search warrant obtained by the informant, Detective Senior Constable, Matthew Feben, was 'tainted by irregularity'; and demonstrated 'impropriety and misfeasance on behalf of the informant', and 'that the process was inherently unfair and highly prejudicial'. The applicant submitted that the warrant formed 'part of a broad ranging concealment/nondisclosure', and 'identifies how information was falsely presented and intended to create a significant forensic disadvantage and prejudice'. As we followed it, the gist of the applicant's argument was that, when reporting the matter to police, neither Bell nor McElligott complained of cash being stolen; but the police, having found sums of cash on the applicant and Harika when they arrested them, used that finding of cash as a basis for alleging that there had been a home invasion when applying for a search warrant. The applicant contended that it was an 'irregularity' to 'falsely' identify cash as having been 'reported stolen' when applying for a search warrant. In the course of executing the search warrant at Harika's premises at 4.27 pm on 25 September 2018, the applicant submitted, police found items in Leah Doody's handbag that belonged to Ms McElligott, which Ms Doody claimed had been given to her by the applicant. But for the execution of the tainted warrant, police would not have obtained this evidence.
2. Next, the applicant submitted that Harika, in his record of interview, told Detective Feben that he had given Ms Doody the items found in her handbag to hide, whereas Ms Doody's evidence was that the applicant had given her those items. The applicant submitted that this was fresh evidence. Detective Feben had 'not only failed to disclosed [sic] that he had evidence that Harika gave Doody these items and told her to hide them, he also omitted that fact and then used what he knew to be a lie to infer guilt and create a substantial forensic disadvantage', so that the prosecution case 'is founded on false and misleading evidence'. The applicant contended that the 'only evidence linking the applicant to the crime at this stage were items identified on the tainted search warrant and the false/tainted statement of Leah Doody'. He submitted that the 'combination of inferences drawn from these tainted documents and the manner in which they were presented created numerous strands of powerful circumstantial evidence with significant probative value', but that 'the fresh evidence in this instance demonstrates that the initial evidence that was relied upon to create all these strands of powerful circumstantial evidence, is fabricated and a total misrepresentation of the facts'.
3. The applicant's third principal argument appears to involve the central contention that the manner in which the prosecutor elicited Ms McElligott's evidence concerning the appearance of the intruders resulted in unfairness to him. He submitted that prosecutors must disclose to the accused any material known to them which, first, is relevant (or possibly relevant) to an issue in the case; secondly, raises (or possibly raises) a new issue that is not apparent from the evidence the prosecution proposes to use; or, thirdly, holds out a real prospect of providing a line of inquiry that falls within either of those categories. The applicant asserted that the prosecutor 'intentionally employed a sequence of leading, confusing and misleading questions' and failed 'to act in the face of irregularity [sic] compelling the witness to give evidence that contradicted her previous statement, which resulted in a substantial departure from the matters set out in Prosecution's opening'.
4. Finally, the applicant submitted that there was fresh and compelling evidence establishing that there was a miscarriage of justice, and that the trial and appeal that followed were compromised by fundamental errors 'occasioned by legal counsel'. Those 'fundamental errors' included defence counsel's failure 'to refrain from challenging the evidence of Eden McElligott or hold the prosecution to account', which 'amounted to a defect or omission which caused the trial to become unfair', so that 'the applicant was deprived of the opportunity to explore other lines of a defence critically important to the applicant's case'. The way in which the prosecutor led the evidence from Ms McElligott created an 'element of surprise ... vitiating the volition of the defence'. As a result, 'the defence did not apply their minds to the critical importance and substantial forensic disadvantage created by McElligott's corrupted recollections'. The general flavour of the applicant's submissions - which largely speak for themselves - is evident from the following:

It never applied to the minds of defence counsel whether they should have been prepared to attack the credibility and reliability of McElligott evidence [sic]. Neither were the true intentions regarding [the prosecutor] deciding not to act in the face of irregularity disclosed, so the defence could consider ramifications or risks and prepare accordingly.

...

If the defence did apply their minds and were able to pick up on the misconduct of the prosecution, the course of cross examination would have been radically different, and in doing so would have; seen the critical importance of tendering the evidence of a prior inconsistent statement; challenge the credibility and reliability of McElligott more rigorously and had also requested appropriate warnings directing the jury not to use this evidence, all of which would have significantly weakened the prosecution's case.

These error's [sic] and omissions were carried through to the appeal. Counsel who argued the appeal on behalf of the applicant was either guided by what senior counsel at the trial told him or was unaware that such evidence was available.

1. Submitting that leave to appeal should be refused, the respondent's counsel contended that the search warrant, and the documents supporting the application for it, were all contained within the depositions. Further, in a pre-trial voir dire the informant had agreed with the proposition that Mr Bell and Ms McElligott had not complained of cash being stolen in their initial report to police. Since the search warrant and supporting material was part of the depositional material available to the applicant at all stages subsequent to his committal and prior to trial, none of the matters complained of by the applicant constitute 'fresh' evidence. Rather, the applicant now seeks to mount new arguments about evidence which was available to him at the time of his trial.
2. With respect to the submissions revolving around the contents of Harika's record of interview, counsel for the respondent submitted that the applicant's argument appears to relate to a purported conflict between, on the one hand, Leah Doody's evidence, and, on the other, Harika's account to police. But this argument, counsel submitted, identifies no fresh evidence. Instead, the applicant seeks to launch a new argument about existing evidence. Given that Harika's record of interview and Ms Doody's evidence were available in the applicant's trial, they cannot constitute fresh evidence.
3. As to the third plank of the applicant's arguments, which appears to contend that the manner in which the prosecutor led Ms McElligott's evidence at trial created an unfairness to him, the respondent's counsel submitted that the applicant posited several subjective opinions concerning the prosecutor's manner of adducing evidence, but provided no additional evidence to make good any of his contentions. In those circumstances, the matters raised by the applicant concerning this issue cannot be considered fresh evidence.
4. Finally, counsel for the respondent submitted that the applicant's arguments as to how his counsel conducted his trial and appeal cannot be fresh evidence. The applicant's arguments are not evidence. They are assertions about the way evidence at trial was dealt with, which, notably, were not the subject of complaint in his previous appeal.

1. The respondent's submissions must be accepted. None of the matters relied upon by the applicant constitute 'fresh and compelling evidence' as provided for in pt 6.4 of the CPA.
2. Under s 326A(1) of the CPA, a person convicted of an indictable offence by the County Court (or Supreme Court), who has exhausted his or her right to appeal against conviction under Division 1 of pt 6.3, may appeal to this Court by leave. By reason of 326C(1), however, the Court may only grant leave to appeal if 'satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal'. As to that, s 326C(3) provides:

(3) In this section, evidence relating to an offence of which a person is convicted is -

(a) fresh if -

(i) it was not adduced at the trial of the offence; and

(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and

(b) compelling if -

(i) it is reliable; and

(ii) it is substantial; and

(iii) either -

(A) it is highly probative in the context of the issues in dispute at the trial of the offence; or

(B) it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.

1. Nothing advanced by the applicant concerning the circumstances in which the search warrant was obtained[8] constitutes fresh evidence within the meaning of s 326C(3). The search warrant and supporting documents were contained within the depositions - which were available at the time of the trial - and therefore could have been adduced at trial with reasonable diligence.
2. The same may be said of Harika's record of interview vis-à-vis Ms Doody's evidence.[9] At the time Ms Doody gave evidence in the trial that the applicant had given her stolen items and told her to 'put them away',[10] Harika's record of interview was contained within the depositions. The exercise of reasonable diligence, constituted simply by reading the depositions, would have revealed its existence.
3. Next, the manner in which the prosecutor elicited Ms McElligott's evidence[11] cannot engage the provisions of s 326C(3)(a). The evidence was given in open court (albeit via a remote facility) in the course of the trial in which the applicant participated through his counsel. Had there been something unfair or prejudicial in the manner in which the evidence was brought out, it would have been open to the applicant's counsel to object. Moreover, it is noteworthy that counsel for the applicant cross-examined Ms McElligott on a variety of matters - including the process by which she claimed to identify one of the alleged intruders from a photoboard shown to her by police in the course of their investigation - yet nothing of relevance to the matters of which the applicant now complains was ventilated with her in the course of that cross-examination. Presumably counsel had the capacity in the course of his cross-examination of Ms McElligott to deal with any evidence that had been left in an unsatisfactory state by the prosecutor's questioning. It cannot sensibly be contended that the manner in which the prosecutor led evidence from Ms McElligott at trial could be considered fresh evidence.
4. Finally, by no torturing of the language of s 326C(3) could defence counsel's purported failures at trial or on appeal[12] be considered evidence, let alone evidence that was fresh and compelling.

1. For the foregoing reasons, no aspect of the applicant's proposed ground of appeal has any substance whatsoever.
2. Leave to appeal must, as we have said, be refused.

[1] Crimes Act 1958, s 77B.

[2] Crimes Act 1958, s 18.

[4] Crimes Act 1958, s 27.

[5] Crimes Act 1958, s 74.

[6] The sentence was structured as follows: charge 1, aggravated home invasion, 7 years and 4 months' imprisonment (base sentence); charge 2, intentionally causing injury, 3 years' imprisonment (12 months' cumulation); charge 6, common assault, 1 year and 3 months' imprisonment (4 months' cumulation); charge 7, extortion with threat to kill, 1 year and 6 months' imprisonment (6 months' cumulation); charge 8, theft, 18 months' imprisonment (2 months' cumulation); and charges 4 and 5, 12 months' imprisonment on each (2 months' cumulation on each). On the charge of possessing a drug of dependence the applicant was fined $100.

[7] Harika v The King; Hamann v The King [2023] VSCA 317 (Priest, Macaulay and Taylor JJA).

[10] See [15] above.

[11] See [19] above.

[12] See [20] above.