Mannella v The Queen [2010] VSCA 357

1 The applicant seeks leave to appeal his conviction and sentence on one count of attempting to possess a commercial quantity of drugs.

2 The facts out which his conviction arises should first be summarised.

3 On 6 April 2005, a container ship named The Scotia arrived in Sydney. Aboard that ship was a container of eight barbeques. These barbeques had commenced their voyage to Australia from Rotterdam (Netherlands). Hidden within plastic tubes inside them was 91.8 kg (393,341 tablets) of ecstasy tablets containing 43.9 kg of pure ecstasy. On 8 April 2005, the container was selected for random examination by Customs Officers who uncovered the secreted narcotics. They replaced the tablets with an inert substance, two electronic listening devices and a tracking device, before the barbeques were reconstructed and the container resealed.

4 The container itself was consigned to a fictitious person, Tom Johnson. The Bill of Lading contained a false contact address and phone number for Mr Johnson. The freight forwarding agent who took receipt of the container in Sydney made extensive efforts to contact this consignee on the false details provided to him, but was unsuccessful in doing so. However, on 12 April 2005, he was personally contacted by the applicant who told him that he had received instructions from Mr Johnson to arrange transportation of the goods to Melbourne. The applicant was the sole director of Logistic Solutions, a freight forwarding and customs broking business which operated out of Tullamarine.

5 On 13 April 2005, the applicant departed Australia for Hong Kong. At this time, a warrant was obtained by Federal Police authorising the interception of conversations occurring on his mobile phone and various calls were subsequently recorded by police and later used in evidence at the applicant's trial.

6 At about 8.40 pm on 17 April 2005, Federal Police intercepted a phone conversation between the applicant and a man known as Mr Mario Acciarito, a friend of the applicant who did occasional work at his business. In that conversation, the applicant asked Mr Acciarito to call him 'straight away' upon his return to Melbourne so that they could arrange to meet. In the early morning hours of 18 April 2005, the applicant returned to Australia. He called Mr Acciarito again, and during that conversation, he stated 'such a surprise I'm gonna give you ... not even in your wildest dreams mate'. The applicant and Mr Acciarito then agreed to meet at the applicant's business in Tullamarine.

7 On 19 April 2005, the eight barbeques were unpacked in Sydney before being loaded onto a semi-trailer which departed for Melbourne. In the evening of that same day, the applicant flew to New Zealand.

8 On the morning of 20 April 2005, the trailer carrying the barbeques arrived at the warehouse of Logistics Solutions in Tullamarine. The pallets containing the barbeques were unloaded and moved inside the warehouse by Logistics Solutions staff. That same day, at around five o'clock in the evening, the applicant arrived in Sydney from New Zealand.

9 On 21 April 2005, the applicant attended the office of Logistic Solutions in Sydney and picked up the paperwork associated with the consignment. He flew to Melbourne that evening, arriving just before seven o'clock and was picked up at the airport and driven to his warehouse by an employee. He arrived there at 7.13 pm, outside normal business hours and at a time when all the other employees of the company had left the premises. The applicant then called Mr Acciarito, who said he would see him shortly and that he would be bringing 'Bubbles' with him, but that 'Bubbles' did not 'know anything'.

10 A few minutes before 8.00 pm, Mr Acciarito arrived at the warehouse in the company of a man known as Mr Raymond Sassine. They were met at the entrance to the warehouse by the applicant and all three men entered the building. Between 8.12pm and 8.27pm, Federal Police monitoring the audio devices implanted in the barbeques heard voices and the sounds of items being moved around. Between 8.33 pm and 9.05 pm, they heard sounds of the PVC pipes containing the inert narcotics being removed from the barbeques as well as numerous conversations. At 8.23 pm, Federal Police who were monitoring the premises also noticed a woman named Ms Hayley Wood standing beside a car parked outside the warehouse.

11 Between 8.30 pm and 8.41 pm, CCTV footage shows the applicant, Mr Acciarito and Mr Sassine walking about and back and forth from where the barbeques are located. About 8.43 pm, Federal Police monitoring the audio surveillance devices heard a conversation in which a male person believed to be Mr Acciarito said 'I probably wouldn't know ... never had nothing to do with me', followed by the sound of metal items being moved. At 8.43 pm, Federal Police officers monitoring the audio surveillance devices also heard metal clanging consistent with the lid of a barbeque being lifted. A short time later, Mr Sassine was observed leaving the warehouse and letting Ms Wood into the property, before both of them went inside the warehouse. CCTV footage from inside the warehouse shows Mr Sassine and Ms Wood walking inside the warehouse in the company of a dog.

12 Between 8.49 pm and 8.52 pm, Ms Wood could be heard on the audio recording in the vicinity of the barbeques. During one conversation, one of the men refers to her as H, and says 'H look at this' to which she replies 'I can hear...'. The male responds with the question 'What can you hear?' To which she replies, 'Beroccas'. The male then replies 'Maybe girl'. During a later conversation, Ms Wood can be heard to say the words 'Very appropriate labels'.

13 At 8.51 pm, one of the men in the vicinity of the barbeques said 'That shouldn't be there.' A short time later a person believed to be Mr Acciarito was heard saying 'Joe, let it go, let 'em go, I'll have a look'. Another male then asks him 'Have you got the...' to which Mr Acciarito replies 'I've got it in the car.' Between 8.56 pm and 9.03 pm, the applicant, Mr Acciarito, Mr Sassine and Ms Wood and the dog were observed by police searching around the yard at the front of the premises. At 8.58 pm, Mr Acciarito can be seen on video surveillance footage apparently holding a radio frequency scanner capable of listening to police communications. At 9.03 pm, the applicant and Mr Acciarito went back inside the warehouse whilst Mr Sassine and Ms Wood remained outside smoking. CCTV footage of the applicant and Mr Acciarito re-entering the warehouse shows Mr Acciarito carrying the radio frequency scanner. The applicant and Mr Acciarito can then be heard removing items from the barbeques and the radio frequency scanner can be heard operating in the background. CCTV footage shows them moving in the vicinity of the barbeques.

14 Around 9.05 pm Federal Police monitoring the listening devices installed in the barbeques heard metal clanging and metal items being moved or opened as well as snatches of conversation between the applicant and Mr Acciarito.

15 At around 9.07pm, Federal Police members attended at the premises. They arrested Mr Sassine and Ms Wood outside the warehouse. Upon entering the warehouse itself they found Mr Acciarito about eight to ten metres away from the barbeques and he was also arrested. The plastic wrapping had been removed from five of the eight barbeques and 13 of the cylindrical packages containing the substituted, but inert, narcotics had been removed and placed on the warehouse floor. On some cardboard boxes next to the barbeques was a radio frequency scanner and a yellow utility knife.

16 Federal Police then executed a search of the premises and the individuals already described and seized a number of items, including a number of mobile telephones.

17 The Crown contended that the applicant knew the container held narcotics and was intending to take possession of those narcotics when he, and his co-accused, were interrupted by Federal Police. At trial, the evidence against the applicant was made up, in large part, of audio and visual surveillance of him, the container in which the drugs in question were located, his business premises and his telephone conversations. From this evidence, the Crown asked the jury to infer knowledge on the part of the applicant of what was secreted inside the container, and therefore, his guilt. Thus, the Crown case against the applicant was wholly circumstantial.

18 The applicant pleaded innocence and denied knowing that the barbeques contained ecstasy. He said that he had been contacted by Tom Johnson on 4 April 2005 and received the original House Bill of Lading in respect of the cargo on 13 April 2005. He claimed that there was a note attached to that Bill of Lading from Tom Johnson which referred to their previous conversation and asked him to clear and deliver the cargo in question. The applicant explained that he had arrived at the warehouse on the night of 21 April 2005 and found it in a state of untidiness. He had already arranged to meet with Mr Acciarito that night and explained to him that he wanted the warehouse cleaned up. He explained that when he and Mr Acciarito began re-palleting the barbeques they heard a rattling sound and upon opening them they found the cylinders of substituted narcotics. The applicant stated that he intended to call the airport with respect to the barbeques and have them collected and examined when he was interrupted by the arrival of police.

19 The applicant explained some of the conversations between himself and Mr Acciarito as being references to his plans to expand his logistics support business in Sydney and to employ Mr Acciarito and Mr Sassine in that expansion, or as part of discussions between himself and Mr Acciarito about a large clothing account serviced by Logistics Support.

20 The applicant stood for trial with the other people discovered on the premises with him at time that it was raided by police; Raymond Sassine, Mario Acciarito and Hayley Wood. Although the applicant gave evidence, each of these co-accused stood mute. Each of them was convicted on the same count as the applicant save Mr Sassine, who was acquitted following a successful no case submission.

21 Before proceeding to the substantive appeal, it is appropriate to draw attention to the history of delay in this matter. The applicant and his co-accused were presented for trial in the County Court on 5 April 2006. The case was put into the long trial list in the County Court and thereafter underwent a number of adjournments arising from the need to provide a block of trial time appropriate for the duration of the case. There were subsequently problems with legal aid funding. Hence, the trial did not commence until 3 May 2007.

22 On 7 June 2007 the applicant was found guilty of one count of attempting to possess a commercial quantity of the narcotic substance ecstasy (3, 4- Methylenedioxymethamphetamine) contrary to s 11.1(1) of the Criminal Code (Cth). The applicant was sentenced to ten years' imprisonment, with a non-parole period of seven years' imprisonment.

23 An application for leave to appeal against conviction was filed on 17 September 2007. The application lapsed due to the applicant's failure to file a Full Statement of Grounds of Appeal in time, despite being granted a number of extensions in which to do so. The application was reactivated in the middle of 2009 following the granting of leave to reinstate. Following a further series of extensions, the applicant finally filed a full Statement of Grounds of Appeal in respect of both conviction and sentence on 15 June 2010. The application was fixed for hearing at the earliest practicable date thereafter.

24 The applicant has appealed his conviction on one ground only, although he has argued that that single ground has given rise to a number of distinct errors. Succinctly, he argues that the learned trial judge failed to correctly direct the jury as to how it should properly draw inferences of criminal guilt from circumstantial evidence, and how such inferences, once drawn, could be used by the jury to satisfy itself that the requisite standard of proof had been met by the prosecution.

25 At trial, the judge below gave a number of different directions with respect to circumstantial evidence, inferences and the standard of proof. To summarise, early in the charge, her Honour gave a fairly orthodox direction on the standard of proof, and also directed the jury as to circumstantial evidence and the drawing of inferences through the use of an analogy that I will discuss later. The following day, the jury asked her Honour to clarify how inferences could be drawn from circumstantial evidence. The learned trial judge answered this question in a manner which her Honour conceded was erroneous after exception was taken to it by counsel for the Crown. The trial judge then redirected the jury in a manner which sought to correct her Honour's earlier misdirection. No exception was taken to this re-direction and the jury asked no more questions. After deliberating for six days they returned their verdict. I turn now to elaborate her Honour's relevant directions and how they arose.

26 The trial judge first explicated the manner in which 'safe' inferences could be drawn from circumstantial evidence by describing to the jury a scenario in which a person in Melbourne spoke by telephone to someone in Sydney and then, when that person arrived in Melbourne a few hours later, infers that the person must have flown by plane. Her Honour contrasted this with the kinds of inferences that could not be drawn without more information, for example, what airline the other person had flown on. Next, her Honour directed the jury not to draw an inference unless they were satisfied beyond reasonable doubt of all the facts necessary to support that inference, and that the inference so drawn was the only reasonable one that could be drawn from the facts in question.

27 In illustrating the manner in which inferences could be drawn through the analogy of aeroplane travel, her Honour used the words 'equally likely' :

However, you could not infer on that scenario what airline [the person] travelled by. It is equally likely that [the person] came from Sydney to Melbourne by Qantas or Virgin.

28 Later, when discussing the same analogy, her Honour repeated the phrases 'equally likely' and also 'just as likely'. The trial judge did not fall into error in using these phrases to explain her analogy.

29 Having exhausted her analogy, the learned trial judge directed the jury that unless they were satisfied beyond reasonable doubt that 'there was no other picture that could just as reasonably be painted' of the accuseds' conduct they should acquit them. Her Honour then told the jury twice in non-controversial terms as to how they should approach drawing inferences from the facts of the case before them.

The prosecution asked you to infer, to draw an inference that each of the accused persons knew or believed there was some ecstasy inside those barbeques. I will just finish with a reiteration that you must be satisfied beyond reasonable doubt that the only reasonable inference that can be drawn in relation to the evidence pertinent to each accused is that they did have, each of them had that knowledge or belief. You must be satisfied beyond reasonable doubt that all other reasonable inferences consistent with an innocent explanation have been excluded.

30 The following day, the jury asked the trial judge the following question:

Please explain law as applying to circumstantial evidence again, re example of Ms Wood, re two reasonable explanations for the circumstances in words of one syllable.

31 The trial judge responded to this request in the following fashion:

Circumstantial evidence ... is evidence comprising a series of facts from which you are asked to draw inferences. For example, in the old County Court, before we moved into this building, all the jury rooms had one door going in and out, leading to the courtroom. So if I were asked, if I had to determine whether or not there was anyone left in a jury room, and the facts that I had in front of me were that I was sitting there the whole time, I saw twelve of you go in there, I saw eleven come out, that does not mean that I have walked in and seen one person in the jury left in there in the jury room, which could be direct evidence because I am sitting here. But I would deduce, I would infer that there was one person left in the jury room because of the facts. I could make that inference because of the circumstantial evidence; they being I know the jury room only has one door and that leads to and from this courtroom. I have seen twelve people go in, eleven have come out, therefore, I can infer on that circumstantial evidence that there is one person left in the jury room. Does everyone understand that? Very well.

So the circumstantial evidence is the jury room, the one door, the twelve going in, the eleven coming out. They are all pieces of circumstantial evidence which allow me to draw the inference. And in so far as a criminal trial is concerned, you can only draw an inference which establishes an element that must be proved by the prosecution, or which goes to establish the guilt of an accused person if it is the only inference reasonably open on the facts.

The inference example that I have just given you which is based on circumstantial evidence or bits of evidence leading to a conclusion, that was the only reasonable inference open on those facts. If, however, I knew that there were two doors by which you could go into the jury room which indeed is the case with your jury room, and I sat here and twelve jurors went in there and eleven came out, I could not safely infer there was one jury member left in that room, because it is equally open on those facts that they might have gone out the other door without me knowing. All right. So, in that case there are two equally compelling, if you like, equally reasonable inferences that I can draw from that set of circumstances, and that set of circumstances is different to the first set of circumstances because in the second set of circumstances there are two doors leading to the jury room, one of which I can use to see you go in and out, jurors go in and out, the other one I cannot. So that on that scenario, I could not safely infer that there was one juror left in the jury room. All right.

Now again, the way that applies to a criminal trial is that you cannot draw an inference which goes to the establishment of an element in a criminal charge or generally as to the guilt of an accused person if there is more than one inference reasonably open on the facts. [Emphasis added].

...you must be satisfied beyond reasonable doubt that there is no other reasonable inference or conclusion that can be drawn from that circumstantial evidence beyond that of guilt. And by reasonable, it has got be competing. It has got to be of equal strength. Is that clear? That is the way in which you go about dealing with circumstantial evidence and drawing inferences.

It is a matter for the jury to look at all the evidence and to make the decision whether an inference you are being asked to draw from this circumstantial evidence is the only reasonable inference that can be drawn; that other reasonable inferences which could lead to a different conclusion have been excluded beyond a reasonable doubt. [Emphasis added].

33 Counsel for the applicant took exception to her Honour's direction on the basis that the jury had been told that in order to displace an inference of guilt, the alternative, innocent explanation advanced by the accused in his defence had to be equally compelling. In actual fact, the prosecution was required to satisfy the jury beyond reasonable doubt that all possible explanations reasonably consistent with innocence had been excluded. Counsel for the applicant postulated 'do those hypotheses have to be equally compelling?'.

34 Her Honour conceded the correctness of this exception. A curious and unhelpful exchange then occurred between the trial judge, counsel for the Crown and counsel for Mr Acciarto:

HER HONOUR: I have already said equally, however, and it is a description that they will take with them.

COUNSEL FOR THE CROWN: All right, you have said it twice.

HER HONOUR: I have said it twice. How do I go about recharging that in a way that doesn't dismantle it?

COUNSEL FOR THE CROWN: Well if your Honour says something like the Crown have to establish the guilt beyond reasonable doubt if there is a hypothesis reasonably open on the materials which is contrary to that, the Crown haven't achieved the requisite standard.

HER HONOUR: All right, let's - could you say that again please, Mr Meredith.

COUNSEL FOR THE CROWN: The Crown has to establish guilt beyond reasonable doubt. If there is a hypothesis reasonably open on the materials, which is not consistent with guilt...

HER HONOUR: Hypothesis, reasonably open on the materials...

COUNSEL FOR THE CROWN: The evidence, the materials, whatever, the Crown has fallen short, or the Crown has not established guilt however it can be phrased. And Your Honour, if you were mindful of doing that, you could just bring them back in and just say that in a generic sense...

HER HONOUR: I need to do something about the word "equally" though.

COUNSEL FOR MR ACCIARTO: Your Honour, the only appropriate characterisation and it is the prior use of equalising, if you like, but what's...

HER HONOUR: I will take away equal, and I will say that I will take away equal. It's not a question of equal, it's a question of, if at the end of the day you are left with the fact that there is a reasonable hypothesis.

35 Counsel having agreed upon this wording, her Honour then redirected the jury as follows:

Now in looking at the evidence that has been presented, if there is a hypothesis, an explanation, a conclusion that can be drawn on that circumstantial evidence other than guilt, which is reasonably open, then on that evidence then the prosecution has not established guilt beyond reasonable doubt.

Now the reason I am repeating that is I talked about, it has got to be equally as compelling. That is an overstatement. It is not a question of the alternative or other conclusion that can be drawn on the facts that is equal, it has got to be reasonably open, all right. So the fact that there might be another hypothesis does not, of itself, mean that therefore the Crown's hypothesis is not of sufficient weight, but it must be a hypothesis which is reasonably open so as at the end of your deliberations, looking at the circumstantial evidence, and that the hypothesis can be drawn, or the inference that can be drawn, there will be inferences leading to guilt, and if there is, in your view, an inference reasonably leading to an alternative, or different conclusion that you regard as being open, then the prosecution has not established guilt beyond a reasonable doubt.

That is the only thing I wanted to clear up about that, which was that it is not a question of, is there an equal hypothesis, or is there an equal inference that can be drawn. Is there a reasonable inference still left other than one of guilt then the prosecution has not satisfied you beyond reasonable doubt of guilt. Your verdict there should be one of not guilty. [Emphasis added]

As I said the explanation of it can sometimes make it seem a lot more complicated that it really is. It is just very important. The prosecution must prove beyond a reasonable doubt, seeking to establish guilt by asking you to draw inferences. If there are other inferences reasonably open, other than guilt, then the prosecution have failed in their burden of proof beyond reasonable doubt and you would come back and enter a verdict of not guilty. It is a question for you whether you find that there is such an alternative inference open on that circumstantial evidence.

37 Having done so, her Honour next proceeded with the remainder of the charge. She addressed a number of other matters, before returning to the topic of how inferences may be drawn. The judge summarised the applicant's alternative explanation of the events out of which the charges arose, namely, that he was in the process of expanding his business, that he had requested Mr Acciarito and Mr Sassine to attend the warehouse on the night in question to discuss that expansion, that having arrived there and found the warehouse in a state of disarray, he engaged them to help him clean up the premises, that during the course of that cleaning they discovered the secreted narcotics, and that other aspects of their behaviour were explicable by his fear that they might be being 'set up' and about to be robbed.

38 Having described the applicant's case this way, her Honour then said:

So, this is the other inference, series of inferences, that the defence says is reasonably open on the material before you. But you can see the case against each accused is quite different. Mr Mannella is said to be the prime mover, as I have said. Mr Acciarito and Ms Wood are said to be the aiders and abettors.

39 Her Honour then concluded her directions on this subject by stating:

You are asked by the prosecution to infer that knowledge or belief and again I repeat, you may only do so if the prosecution has satisfied you beyond reasonable doubt that there is no other inference reasonably open on the material.

40 No further exception was taken to her Honour's directions with respect to circumstantial evidence. The charge being concluded, the jury retired to consider their verdict. After deliberating for six sitting days, they returned a finding of guilty against the applicant and each of his co-accused, save Sassine.

41 The manner in which a jury should be directed with regard to circumstantial evidence and the drawing of inferences is well set out in Part 3.5 of the Victorian Criminal Charge Book.[1] In deciding upon the guilt or innocence of an accused person, a jury may rely on inferences drawn from circumstantial evidence. Proof of guilt by circumstantial evidence is not unacceptable or suspect of itself.[2] However, where the prosecution case relies in large part on inferences drawn from circumstantial evidence, it is usually necessary for the trial judge to direct the jury that, first, to find the accused guilty, his or her guilt must not only be a reasonable inference, it must be the only reasonable inference which can be drawn from the circumstances established by the evidence, and, secondly, that if the jury considers that there is any reasonable explanation of those circumstances which is consistent with the innocence of the accused, they must find him or her not guilty.[3] These two requirements do not describe a separate standard of proof, they simply convey the meaning of 'beyond reasonable doubt' in cases involved circumstantial evidence.[4]

42 It is clear from the fact that the jury sought clarification on how it might use circumstantial evidence to draw inferences of guilt that it was confused about the operation of the standard of proof where there were competing explanations for circumstantial evidence one of which supported a finding of guilt and one or more of which supported a finding of innocence. The direction which the learned trial judge gave in response to that question was erroneous and apt to mislead the jury.

43 An alternative hypothesis does not have to be 'equally open' or 'equally compelling' in order to give rise to a reasonable doubt as to guilt, such a doubt will arise where any other inference consistent with innocence is reasonably open on the evidence,[5] and the accused is entitled to the benefit of the doubt necessarily created by that competing inference.[6] By using phrases such as 'equally open', the trial judge was clearly trying to impress upon the jury the requirement that any competing inferences consistent with innocence sought to be drawn had to be reasonable, and that they could not properly rely upon a tenuous conjecture or fanciful supposition to find the accused innocent.[7]

44 However, in doing so, her Honour fell into the opposite error. First, she unacceptably lowered the jury's understanding of the standard of proof which the prosecution needed to satisfy in order to prove the guilt of the accused. There is an unacceptable risk that the jury understood the prosecution's burden of proof 'beyond a reasonable doubt' to have been met provided that there was not another 'equally' likely explanation for the circumstances upon which the inference of guilt was founded and that the direction so given 'controlled' that concept as it was understood by the jury.[8] Secondly, there is an unacceptable risk that the jury believed that the accused needed to 'prove' an alternative version of what had occurred, rather than being able to receive the benefit of the reasonable doubt created by the reasonable possibility that that alternative version had, in fact, occurred. Instead of the prosecution having to exclude the reasonable inference or hypothesis consistent with innocence, there was a risk that the jury may have thought the applicant carried the burden of establishing that this inference or hypothesis was, at least, equally open. As was stated in Knight v R:

There are not ... degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.[9]

45 The question then becomes whether or not her Honour's re-direction was sufficient to overcome those errors, or whether the original erroneous direction so captured the jury's understanding of both the burden of proof and the means by which inferences could be drawn from circumstantial evidence that it rendered their eventual verdict unsafe and unsatisfactory.

46 The applicant submitted that by characterising her original misdirection as an 'overstatement', the learned trial judge failed to adequately repudiate the standard of proof that she had previously described. Further, her Honour failed to explain to the jury in her redirection that they needed to exclude beyond reasonable doubt both the alternative circumstantial case advanced by the applicant and also the direct evidence of his sworn statements. The respondent submitted that on a fair reading of the charge as a whole, it was made abundantly clear to the jury that the prosecution bore the onus of excluding, beyond a reasonable doubt, all reasonable hypotheses explaining the circumstances of the case consistent with innocence.

47 There appears to me to be an unacceptable risk that the jury's understanding of the requisite standard of proof, and also the methodology by which they were able to draw inferences from circumstantial evidence to satisfy it, was irrevocably tainted by her Honour's original misdirection. It also appears to me that her Honour's re-direction, especially insofar as it used the word 'overstatement', was insufficient to overcome that risk. Those errors were compounded by the manner in which the trial judge directed the jury as to the defence case. The applicant's case was primarily based on his direct evidence. It was only a circumstantial case insofar as that direct testimony also provided an alternative explanation to the inferences which the prosecution sought to draw from the circumstances giving rise to his arrest. By characterising it as a circumstantial case, the trial judge failed to adequately explain to the jury how they could use such evidence when deciding questions of guilt.

48 In summary, there was an error in learned trial judge's response to the jury's question, the redirections which followed the identification of that error failed to correct it sufficiently and, in fact, placed an additional and inappropriate burden on the applicant by misstating to the jury the applicant's direct evidence case of denial.

49 It must be added that counsel for the Crown ultimately exacerbated the errors in question by failing to ask the judge to further redirect the jury, indeed, as the exchange set out above makes clear, compounding its erroneous nature. Defence counsel also contributed to these errors by failing to take exception to the terms of the redirection Whilst this Court has made plain often enough that failure to take exception represents a 'serious obstacle' to appeals,[10] here, the error was so fundamental that notwithstanding the acquiescence of counsel for the applicant in the misdirection and failure to take exception after the redirection was concluded, the applicant should not be penalised.

50 The next question to consider is whether the proviso may be invoked. I have considered all the evidence as required.[11] I cannot be satisfied that the applicant's case would not be accepted by a jury properly directed. I am not persuaded to invoke the proviso.

51 It follows that I would grant leave to appeal against the conviction, allow the appeal, set the conviction aside and order a retrial. It is unnecessary to consider the application for leave to appeal the sentence.

52 I agree with the reasons and disposition proposed by the Chief Justice.

53 I also agree with the reasons and disposition proposed by the Chief Justice.

[1] Victorian Criminal Charge Book (2010) Judicial College of Victoria at 21 December 2010.

[2] De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85, 97.

[3] Knight v R [1992] HCA 56; (1992) 175 CLR 495, 509-510 ('Knight'); Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, 577-578 ('Shepherd'); Barca v R [1975] HCA 42; (1975) 133 CLR 82, 104 ('Barca'); Plomp v R [1963] HCA 44; (1963) 110 CLR 234, 252; Thomas v R [1960] HCA 2; (1960) 102 CLR 584, 605-606.

[4] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 128-129; R v Lancefield [1999] VSCA 176, [22]; Knight 502-504.

[7] Knight 509; Barca 104; Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 661.

[8] Green v The Queen [1971] HCA 55; (1971) 126 CLR 28, 31.

[10] R v Clarke &Anor [1986] VicRp 64; [1986] VR 643, 661-2; R v Senese [2004] VSCA 136 [44]; R v I A B [2009] VSCA 229 [93].

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