Court of Appeal (Vic)|2010-11-19|Before: MAXWELL P, REDLICH and HARPER JJA

The applicant complains under grounds 1 and 2 that the trial judge failed to adequately direct the jury in relation to the expert evidence of Ms Ryan, and that, given the significance which that evidence assumed in the trial, this led to a miscarriage of justice.

Ground 1: The direction to the jury concerning the circumstantial evidence of the expert

24 The gravamen of this ground is that the trial judge should have directed the jury that, if the expert evidence of Ms Ryan was to form a significant part of their reasoning towards finding the applicant guilty, they would have to be satisfied of her evidence beyond reasonable doubt. The applicant submitted that in accordance with Shepherd v The Queen circumstantial evidence tendered in proof of 'intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt' must be established to the criminal standard. In the context of the circumstantial case against the applicant, the Crown contended that the expert evidence in relation to the blood stains was merely one 'strand in a cable' rather than 'a link in a chain of sequential reasoning', and as such it was not the type of circumstantial evidence which required such a direction.

25 The Crown in this case was relying upon an accumulation of detail which constituted strands in a cable to establish the applicant's guilt.[5] The evidence of Ms Ryan in relation to the blood stains was one such strand. Mr Abbas's description of the kicker, the post-offence conduct of the applicant said to evidence consciousness of guilt and evidence of opportunity were other strands.

26 The fact that the expert evidence was not a link in a chain of reasoning does not dispose of the question whether such a direction should have been given to the jury. It is well recognised that such a direction may be required in relation to a piece of evidence if that evidence, 'although logically only a strand in a cable, is of such practical importance that it is prudent to direct the jury that they must be satisfied about it beyond reasonable doubt.'[6] As Winneke P stated in R v Doherty,[7] such a direction can be reconciled with the statements of Dawson J in Shepherd.[8] Even in a 'strands in a cable' case, there may be some facts on which the Crown relies which are so influential that, standing alone, they should be treated as though they were indispensable links in a chain of reasoning towards guilt.[9] Accordingly, where a fact assumes such importance to the prosecution case, the trial judge will, as a matter of prudence, so direct a jury to ensure that a perceptible risk of a miscarriage does not occur.

27 Ms Ryan's expert evidence consisted of findings of fact as to the DNA of the stains on the applicant's shirt and shoe and how, in relation to the latter, such blood stains are usually created. She discounted one hypothesis advanced by the defence as to how the contact stains got on his shoe, namely by someone else stepping in blood and standing on the applicant's shoe. But she did not give evidence that it was her opinion that, based on the blood stains, the applicant must have kicked someone who was bleeding. The defence did not challenge Ms Ryan's findings of fact. It was the inferences to be drawn from Ms Ryan's factual findings that were in issue. Her evidence did not reach the level of an 'intermediate factual conclusion'.[10]

28 In his charge to the jury, the trial judge informed the jury that they were faced with a circumstantial case, and directed them that they could not 'infer the existence of any element of a charge, or the guilt of the accused unless first you are satisfied beyond reasonable doubt of all the facts necessary to make the inference.' Later on in the charge, his Honour repeated this warning and directed the jury as to how to examine an argument based on circumstantial evidence, making specific reference to Ms Ryan's evidence:

First, you should examine the facts upon which it is based to see if they have been proved beyond reasonable doubt...For example, you have heard the witness, Ryan, give her evidence and you have heard her cross-examined by counsel for the accused, Mr Lavery. You have heard him address you on aspects of her evidence. It is a matter for you whether you accept her evidence and the degree to which you are satisfied by it.

Second, you should examine the logic of the argument to see if it establishes the conclusion from those facts to the exclusion of any other answer. If you are satisfied after such an examination of the evidence that there is no other reasonable conclusion but that of guilt, you should convict the accused. If you see, however, that there is another reasonable explanation of the facts, an explanation consistent with innocence, then obviously you would not be able to say that the circumstances prove the guilt of the accused beyond reasonable doubt, and you should not find the accused guilty upon the circumstantial evidence alone.

29 His Honour later repeated his warning, reminding the jury '[w]hen I instructed you about inferences earlier I told you that you must not draw an inference about an important matter without being satisfied that it is the only reasonable inference open in the circumstances.' His Honour repeatedly directed the jury as to the need to be satisfied beyond reasonable doubt of any facts from which they were asked to infer the guilt of the accused or an element of the charge, or indeed any 'important matter'. Further, his Honour specifically made reference to Ms Ryan's evidence in the context of reminding the jury of the need to be satisfied beyond reasonable doubt of facts upon which inferences are based, and proceeded to tell the jury that they must not reason from those facts to the conclusion proposed by the Crown unless it was the only reasonable explanation open on the evidence. These directions were more than sufficient to ensure that the jury understood that they could only draw an adverse inference against the applicant if they were satisfied that no other reasonable explanation for the blood stains was open.

30 Accordingly, this ground of appeal is not made out.

Ground 2: The direction to the jury as to expert evidence

31 The applicant also submitted that his Honour failed to give an adequate direction to the jury about the nature of expert evidence, and how they should have considered the expert evidence of Ms Ryan. The applicant referred to the observation of Callaway JA in R v Kotzmann[11] where his Honour said:

In view of the importance of expert evidence in this case, it would be desirable for the jury to be directed in conventional terms that expert opinion is no better than the facts on which it is based, that it is for the jury to be satisfied of the facts in issue at the trial and that ultimately it is their opinion that counts. Without such a warning expert evidence may have an even more seductive effect than evidence of visual or aural identification of persons or objects.[12]

32 As discussed above, the expert opinion of Ms Ryan was limited to an opinion as to the nature of the stains on the applicant's shirt and shoe, whose DNA matched that in the stains, and how such stains could be created. She expressed no opinion as to how the applicant got the stains. His Honour did direct the jury that they were not bound by the evidence given by Ms Ryan, saying '[i]t is a matter for you whether you accept her evidence and the degree to which you are satisfied by i[t].' This was, as noted above, in the context of instructing the jury that they should be satisfied that the circumstantial facts be proved beyond reasonable doubt before drawing any inferences from them. This would also have alerted the jury to the fact that if they did not find the underlying facts of Ms Ryan's evidence proved beyond reasonable doubt, they were entitled to reject her evidence. The findings of fact made by Ms Ryan were not challenged by defence counsel, nor was any contradictory evidence adduced at trial. In those circumstances, the directions to the jury that they had to be satisfied of the factual basis for Ms Ryan's evidence, and could decide for themselves whether to accept what she said, were sufficient to avoid any danger that the jury might think itself bound by what Ms Ryan had said.

Ground 3: Jury verdicts were unsafe and unsatisfactory

34 The applicant submitted that the jury acting reasonably should not have been able to exclude as a reasonable possibility that someone other than the applicant was responsible for kicking Mr Black. Therefore the jury's verdicts of guilty on counts 1 and 3 were unsafe and unsatisfactory. The question which this court must then ask itself is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[13] In order to answer this question, it is necessary to undertake a more detailed assessment of the evidence led at trial.

35 Before doing so I would make these preliminary observations. When an appeal against conviction includes a ground that raises the question whether the jury's verdict can be supported by the evidence, a summary of the Crown case directed to answering that contention, which includes an enumeration of the salient features of the prosecution's case at trial, must be provided to the Court. The Court is otherwise unable to assess whether the evidence should be viewed as raising a reasonable doubt as to the applicant's guilt. Furthermore, where there is a dispute on appeal as to the way in which a party presented its case at trial, it will usually be necessary to obtain counsel's closing addresses. In the present case it was contended that the Crown on appeal was presenting its case in a different way to the way it had been put at trial.

36 When the oral hearing commenced the Court did not have available to it a summary of the Crown case which identified the essential features of the prosecution case nor were closing addresses transcribed. The Court directed that the Crown provide it with such a summary including a chronology of its direct evidence. The parties were requested to file further submissions, addressing that further material. Transcripts of the closing addresses of counsel at the trial were also ordered.

37 There were features of the Crown's case at trial which pointed towards the applicant's guilt, and which counsel for the applicant, unsuccessfully, sought to minimise on appeal; namely the inference to be drawn from the expert evidence as to the blood spatter on the applicant's shoes, and the post-offence conduct evidencing a consciousness of guilt.

38 Ms Ryan did not venture an opinion as to how, in the course of the events of that evening, the blood came to be on the applicant's shoe. The applicant emphasised on appeal that Ms Ryan's expert evidence did not foreclose defence counsel's innocent explanations as to how the blood spatter and stains may have got onto the applicant's shoe. However, her evidence as to the presence of Mr Black's DNA in the blood on the applicant's left shoe, the nature of those blood stains and the mechanism by which such blood spatters are usually created, was not challenged by defence counsel. As I have already said, it was a matter for the jury as to what inferences could be drawn from that evidence.

39 The applicant maintained that it was open to the jury to find that the stains and spatter could have resulted as the applicant hurried past Mr Black who was bleeding on the ground to break up a fight between Mr Veal and Mr Trussler. Such a hypothesis accorded with Mr Sikora's observations. However, Ms Ryan's evidence was that force would have to be applied to an area of blood or a bloody surface in order for the 'feathering-type' contact stain and the spatter stain on the left shoe to result. She gave evidence that in order for the spatter stains on the shoe to be projected up higher than ground level (ie just the sole of the shoe) the applicant would have had to 'stomp really quite hard, through a pool of blood'.

40 In the course of her cross-examination and re-examination, Ms Ryan was shown photographs that had been taken on the night of the assault by Detective Senior Constable Nathan Favre, which showed blood spots on the ground in the car park. Ms Ryan characterised these spots as 'passive droplets' and contact stains, not as pools of blood. She gave evidence that it was 'highly unlikely and not possible' that the projected spatter stain on the top of the applicant's shoe could be produced by someone stepping into such blood deposits. However, Ms Ryan conceded that she had not attended the crime scene, and therefore could not conclusively say that there were no blood deposits of sufficient size at the crime scene which could have produced the spatter stain in the manner proposed by defence counsel.[14]

41 The applicant also challenged on appeal, as he did below, that his exchange with Mr Abbas and the lies he told in the police interviews necessarily evidenced consciousness of guilt. It was submitted that the applicant knew his friends Mr Mega and Mr Veal had been involved in a serious fight, and therefore, out of concern for his friends, he had reason to question Mr Abbas as to what he had seen. Similarly, it was submitted that the applicant had reason to deliberately lie in his interviews with the police about how he got the blood on his shoe, to avoid implicating his friends.[15] It was therefore submitted that there was a hypothesis as to why the applicant deliberately lied which was consistent with innocence and accordingly those lies could not be used as evidence of consciousness of guilt.

42 However, while the questioning of Mr Abbas may be consistent with the innocent explanation suggested, the false explanations given to the police about how he came to have blood on his shoes are not easily reconciled with a desire to protect Mr Veal and Mr Mega. In his second interview the applicant gave an explanation for the blood which correctly identified the source of the blood as being a man lying injured on the ground. The provision of this detail to police would not in any apparent way deflect attention from his friends who he knew were involved in a fight in the car park.

43 The Crown rightly submitted that the inferences that could be drawn from Ms Ryan's evidence and the applicant's lies pointed strongly towards the applicant's guilt. The applicant's criticism of that evidence is unjustified.

44 The applicant also relied upon the failure of Mr Abbas to identify the applicant as the kicker, especially given he had seen the applicant earlier sitting in the hotel and later during the exchange. This, it was said, should have been fatal to the Crown's case, especially as the Crown case had been opened on the basis that Mr Abbas could identify the applicant as the kicker. The applicant submitted that the only logical interpretation of the failure of Mr Abbas to identify him as the person who he saw kicking Mr Black, was that it was not the same man. In support of this point, the applicant drew the Court's attention to a passage in his Honour's charge to the jury, in which his Honour said the following:

You may well find that one of the most extraordinary things about this case is that Mr Abbas, who was the security guard, trained in those matters...who apparently got so close to this person kicking, was able to give that sort of description [of the kicker being a 'large' and 'wide' man], was not able to identify the accused as the person doing the kicking. That is especially so when you have the Crown case that the kicker was the person confronting him outside the door of the hotel but a few minutes later.

45 Mr Abbas was asked in examination-in-chief whether he had seen the person who hugged him earlier in the night; he was not asked whether the person who kicked Mr Black was the same person with whom he had the exchange and who hugged him. His answer was that he had seen him sitting in the public bar with the group, but nowhere else. The significance of that answer depended on Mr Abbas's ability to identify the kicker. All the witnesses had said that the lighting in the car park was poor. In addition, Mr Abbas gave evidence that Mr Black's assailant had his back to him when he was doing the kicking.

46 The failure of Mr Abbas to identify the applicant as the kicker does not necessarily call for the conclusion that the applicant was not the person Mr Abbas saw kicking Mr Black, so as to render the jury's verdict unsafe or unsatisfactory.

47 The Crown could not at trial (and could not on appeal) specify at what point in time:

• the fight between Mr Veal, Mr Mega, Mr Black and Mr Trussler broke out;

• Mr Abbas left the main entrance of the hotel after being informed by an old lady that there was a fight going on in the car park;

• Mr Abbas witnessed the fight between the four men, and tried to break it up; and

• Mr Abbas witnessed Mr Black on the ground being kicked in the head by a 'large man'.

48 It is the Crown's inability to place these events in time that undermines its case against the applicant. It was the Crown's case at trial that the above events must have occurred between 11:03 pm and 11:13 pm. Further, there was only a small window of time, between 11:10 pm when the applicant left the hotel and 11:13 pm when Mr Abbas and the applicant returned to the front of the hotel and had the exchange, during which the applicant could have attacked Mr Black. As his Honour identified in his charge to the jury, it was the Crown's case that at 11:10 pm 'the accused ran outside and immediately joined in the fight in which he assaulted the witness, Black, by repeatedly kicking him, getting his blood spattered on his shirt and shoes in the process.'

49 It was problematic for the Crown that Mr Abbas did not give any evidence that would enable the time at which Mr Black was kicked to be accurately identified. In order to convict the applicant, the jury had to be satisfied that the kicking occurred between 11:10 pm and 11:13 pm, and had to discount the possibility that the kicking had occurred earlier, when the applicant was still inside the hotel.

50 Mr Abbas's evidence was that some time after he had been talking to Mr Black and Mr Trussler outside the rear entry of the hotel (at 11:04 pm), an old lady had come to him and informed him that there was something going on in the car park. He went out to the car park to investigate and saw two men wrestling on the ground, one of whom he identified as Mr Mega. He tried to break the wrestling men up, and then heard a noise behind him, and turned around to see two men fighting standing up, throwing punches, one of whom he identified as Mr Veal. Mr Abbas then said that he saw 'one person being on the ground and another person just running up, kicking him in the head'. After being kicked, the man on the ground 'just froze and laid on the ground, sort of, flat', and 'they all sort of took off, everybody that was there'. The next thing of which Mr Abbas gave evidence was the exchange between himself and the applicant as he returned to the hotel.

51 The prosecutor in his closing address invited the jury to accept the evidence of Mr Sikora as corroboration of the above evidence given by Mr Abbas. Further, the prosecutor sought to use Mr Sikora's evidence as a means of placing Mr Abbas's observation of the kicking as occurring between 11:10 pm and 11:13 pm.

52 The video surveillance footage shows Mr Sikora leaving the hotel at 11:10 pm with the applicant and Ms Kelsey, closely followed by Mr Schembrey. Mr Sikora gave evidence that when he left the hotel he saw a man who was lying on the ground in the middle of the car park (who he later identified as Mr Black) and another man leaning over him. He also gave evidence that he saw Mr Veal in the car park, standing in the distance between himself and the figure on the ground.

53 Proper analysis shows that, if accepted, the evidence of Mr Sikora did not assist the Crown case, but in fact excluded the applicant as being the kicker. If accepted, Mr Sikora's evidence meant that the kicking of Mr Black occurred before he and the applicant emerged from the hotel.

54 Mr Sikora gave evidence that he heard Mr Veal say to the man kneeling over Mr Black (later determined to be Mr Trussler) 'you're not so tough now, are you'. Mr Trussler made some response to this. Mr Veal then ran over to Mr Trussler, grabbed him and wrestled with him. Mr Sikora gave evidence that the applicant then ran over from Mr Sikora's left and intervened between Mr Veal and Mr Trussler, dragging them away to try to split them up. He also said that to get to the struggle between Mr Veal and Mr Trussler, the applicant walked close to and past Mr Black lying on the ground.

55 Mr Sikora gave evidence that he emerged from the hotel at the same time as the applicant, and that the applicant was only 'a couple of steps' in front of him as they neared the man who was already on the ground. Mr Sikora also gave evidence that from the time he first saw the man on the ground to when the police arrived, he had the man on the ground ('Blackie') in his field of vision throughout, except for very brief periods, and that he did not see anyone attack the man on the ground in that time.

56 In the closing address, the prosecutor submitted to the jury that Mr Sikora's evidence confirmed Mr Abbas's account of there being an 'initial fight with the two men on the ground, or a man on the ground, but also a fight involving Mr Veal'. However, Mr Sikora did not give evidence of seeing two men fighting on the ground, only of Mr Black lying on the ground and a man leaning over him (Mr Trussler). Significantly he did not give evidence of seeing any kicking.

57 Accordingly, if the jury accepted Mr Sikora's evidence then, contrary to the prosecutor's closing address, the jury would have been bound to conclude that the kicking of Mr Black had occurred before Mr Sikora and the applicant arrived in the car park. This was how defence counsel had put the applicant's case to the jury.

58 Defence counsel also relied upon the evidence of Mr Schembrey. Mr Schembrey gave evidence that when he left the hotel (which the video surveillance shows was at 11:10 pm), he went straight past Mr Abbas who was at the front of the hotel to go out into the car park, where he saw a man lying on the ground, and another man kneeling or leaning over him. He gave evidence that the man lying on the ground was unconscious, and identified the man standing next to him as Mr Black's partner (Mr Trussler).

59 In the closing address, defence counsel, correctly in my view, identified the 'absolute crux of this case' as being 'what time Mr Sikora and Mr Schembrey went out and saw the man on the ground unconscious.' Defence counsel submitted that the evidence of Mr Schembrey confirmed Mr Sikora's version of events upon leaving the hotel at 11:10 pm.

60 Accordingly, if the evidence of Mr Sikora and Mr Schembrey is to be accepted, Mr Black had already been kicked unconscious before the applicant entered the car park.

Crown changes its position as to the reliability of an eye witnesses account

61 Before this court, counsel for the applicant submitted that the Crown's case at trial was inconsistent with the oral testimony of Mr Sikora and Mr Schembrey. This fact, together with Mr Abbas's failure to identify the applicant as the person responsible for kicking Mr Black, demonstrated that the verdict of guilty was unsafe and unsatisfactory.

62 Upon receiving the transcripts and further submissions, it became apparent that the Crown was seeking to advance a different position to the one advanced at trial, where the jury had been invited to accept the evidence of Mr Sikora as reliable and as corroborating Mr Abbas's evidence of the four fighting men and the kicking incident, at a time when the applicant was at the scene. On the appeal, the Crown conceded that Mr Sikora's evidence was inconsistent with the Crown's case that the applicant kicked Mr Black some time between 11:10 pm and 11:13 pm. It was now submitted that it had been open to the jury and was now open to this Court to reject Mr Sikora's evidence as being unreliable. Given he was a close friend of the applicant and Mr Mega, he had a motive to lie about what he had seen. Although it was suggested that the jury may have rejected Mr Sikora's account even though both parties treated his account as reliable, it is unlikely that the jury so approached its task. The Crown's real submission was that this Court, upon a view of the case different from that which was advanced below, should be satisfied beyond reasonable doubt of the applicant's guilt.

63 The Crown's conduct in taking this course on appeal raises certain questions for this Court. In seeking to resist a ground of appeal that the jury's verdict was unsafe or unsatisfactory because of evidence inconsistent with the Crown case, in what circumstances may the Crown invite an appellate court to view that evidence differently to the way that the prosecution invited the jury to view it at trial?

64 The applicant did not expressly contend that the Crown was not permitted to follow such a course on the appeal. Rather, the applicant submitted the Crown had changed its position on appeal concerning Mr Sikora's evidence because it was not reasonably open to the jury to have convicted the applicant if Mr Sikora's evidence was accepted. As the question whether the Crown was entitled to follow such a course was not the subject of argument, I express no concluded view on the question, but I would not wish to be understood as accepting that in the present case, the Crown is entitled to advance a view of the witness's reliability that was never raised for the jury's consideration and which was contrary to the manner in which the Crown conducted its case at trial.

65 Assuming that the Crown is entitled to take such a course on the appeal, the question is whether the different view of Mr Sikora's evidence advanced on this appeal can remove a reasonable doubt that arose as a consequence of the manner in which the prosecution conducted its case at trial. In the present circumstances such an argument faces insurmountable difficulties. It requires this Court to view an eye witness as unreliable when the jury had been invited to treat that witness as reliable.

66 As was made clear by the majority of the High Court in M v R,[16] when deciding whether a verdict is unsafe and unsatisfactory, an appellate court must give full regard to the fact that the jury has the benefit of having seen and heard the witnesses, and so is 'in a position to evaluate the evidence in a manner in which a court of appeal cannot.'[17] That said, in the present circumstances, the jury verdict cannot provide this court with any guidance as to the reliability or otherwise of Mr Sikora's account of the events in the hotel car park.[18] Both parties having treated his evidence as reliable, and the trial judge having said nothing to contradict such a view, I am quite unable to regard the jury's verdict as an indication that the witness was unreliable.

67 The Crown submission that the jury must have found the witness to be unreliable is a matter of speculation without any foundation, given that both the prosecutor and counsel for the defence assured the jury that he was a reliable witness. The prominent hypothesis, given the way the Crown ran its case, is that the jury were misled into thinking that they should accept Mr Sikora as a reliable witness, and that his account supported the prosecution contention that the applicant was guilty. A likely explanation for the jury verdict is that they accepted the prosecutor's submission that Mr Sikora's evidence coincided in time with Mr Abbas's version of events and was evidence that the applicant had the opportunity to kick Mr Black; an argument which on appeal the Crown has rightly conceded involved flawed reasoning.

68 As the jury's verdict does not illuminate the jury's view of Mr Sikora's credibility or reliability, and the trial transcript does not enable the court to adequately evaluate this question, the reasonable possibility cannot be excluded that Mr Sikora's account (and therefore Mr Schembrey's account, as his was consistent with that of Mr Sikora) is accurate.

69 Because of the position adopted by the parties concerning Mr Sikora's evidence, the judge's charge did not address the manner in which his evidence was inconsistent with the prosecution case. The risk was substantial that the jury did not appreciate that his account could not be reconciled with the prosecution case. Accordingly, there was a feature of this trial on which the appellate court's assessment should prevail over the assessment made by the jury.[19] Notwithstanding the other circumstantial evidence which implicates the applicant, the evidence of Mr Sikora together with that of Mr Schembry raises a reasonable doubt as to whether it was the applicant who kicked Mr Black.

70 The jury's verdict is therefore unsafe and unsatisfactory. I would allow the appeal and quash the applicant's convictions.

71 I turn then to the further question whether this Court, having held that the jury's verdict was not reasonably open to them, should order an acquittal or order that the applicant be retried. If he was to be retried the prosecution would undoubtedly invite the jury to view Mr Sikora's evidence as unreliable, for the reasons advanced on appeal.

72 When determining whether a new trial should be ordered, this Court will consider whether there was sufficient cogent evidence at the trial to justify a conviction, and if so, whether there are any circumstances which might render it unjust to the accused to make him stand trial again.[20] In this case it is not an insufficiency of evidence to support the conviction that has led to the conclusion that the verdicts were unsafe and unsatisfactory. Were that the case, a verdict of acquittal would ordinarily be entered. Here there was sufficient evidence to convict but as I have concluded, the jury was unlikely to have recognised that there was evidence inconsistent with the Crown case. Would it be in the interests of justice to retry the applicant in those circumstances? In answering that question the Court must

consider the public interest in the proper administration of justice as well as the interests of the accused.[21] The latter involves consideration of whether the notions of fairness to the accused, of the type which underpin the principle against double jeopardy, would be violated were the accused to be retried.

73 If a retrial is ordered, the applicant would face the same charges on the same evidence as at the first trial. The ordering of a retrial would thus give the Crown an opportunity to 'mend its hand' against the applicant by changing its approach to Mr Sikora's evidence. Finality in jury trials is a matter of first importance. To order a retrial in these circumstances 'would not encourage the proper administration of justice'.[22] The law prefers justice to truth.[23] Under an accusatorial system the search is not for the truth so much as for a conclusion on whether the prosecution, representing the state, has proved the guilt of the accused to the requisite standard.[24] The applicant would be exposed to the same risk of conviction for the same offence. I do not stay to decide whether a retrial would directly offend the strict rule against double jeopardy, as it is clear on any view that the 'sense of injustice which inspires the doctrine against double jeopardy' would plainly be enlivened were this Court to send the applicant back to trial in these circumstances.[25] To permit a retrial in such circumstances would be oppressive and unfair.[26]

74 In these 'exceptional' circumstances,[27] I would order that a verdict of acquittal be entered on both charges.

[1] A fourth ground (listed on the statement of grounds of appeal as Ground 3) was abandoned.

[5] R v Ng (2002) 5 VR 257, 306.

[6] R v LRG (2006) 16 VR 89, 99 (Callaway JA, with whom Vincent and Ashley JJA agreed).

Cf R v Franklin [2001] VSCA 79; (2001) 3 VR 9, 47 (Ormiston JA); R v Berry [2007] VSCA 202; (2007) 17 VR 153, 170 (Redlich JA).

[9] R v Doherty [2003] VSCA 158; (2003) 6 VR 393, 409; followed in R v Lam (Ruling No 18) [2005] VSC 292 (Redlich J), 24 May 2005.

[10] Shepherd v R ([1990] HCA 56; 1990) 170 CLR 573, 579 (Dawson J).

[13] M v R [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).

[14] The only other evidence as to whether or not there were other more sizeable deposits of blood at the crime scene was from Detective Senior Constable Nathan Favre. He gave evidence that he attended the crime scene at about 1:30 am on Sunday 26 February, and observed 'numerous droplets of blood on the ground' in the car park, of which he took photographs (Photograph numbers 1, 3 and 4). It may be implied from this evidence that he did not notice any other spots of blood on the ground which he did not photograph.

[15] Counsel for the applicant pointed to the applicant's deliberate omission in the police interviews of any reference to Mr Veal's or Mr Mega's presence in the car park as evidence that he was choosing his answers carefully to avoid leading the police to his friends.

[17] Ibid 493-4 (Mason CJ, Deane, Dawson and Toohey JJ).

[18] See Papazoglou v R [2010] VSCA 201, [77] (Ashley JA).

[20] DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630.

[21] Ibid 630; Papazoglou v R [2010] VSCA 201, [80] (Ashley JA).

[22] Papazoglou v R [2010] VSCA 201, [91] (Ashley JA).

[23] The Ampthill Peerage [1977] AC 547, 569 (Lord Wilberforce).

[24] The Hon Justice Michael Kirby, 'Carroll, Double Jeopardy and International Human Rights Law' (2003) 27 Criminal Law Journal 231, 236.

[25] Walton v Gardiner (1993) 177 CLR 378, 398 (Mason CJ, Deane and Dawson JJ).

[26] R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512, 517.

[27] R v ALH [2003] VSCA 129; (2003) 6 VR 276, 280 (Callaway JA).

Kotvas v The Queen [2010] VSCA 309 (19 November 2010)

Kotvas v The Queen [2010] VSCA 309

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties

Cases Cited (13)

Kotvas v The Queen [2010] VSCA 309 (19 November 2010)