Murrell v The Queen [2014] VSCA 334

CRIMINAL LAW - Appeal - Judge's summing up - Duties of trial judge - Obligation to identify all evidence whether direct or circumstantial relevant to the issues - Jury Directions Act 2013 ss 17, 18.

2 The trial of the applicant, Anoir Murrell, on a joint indictment with Lloyd Murrell and Kerry Murrell on one charge of aggravated burglary and four charges of armed robbery, commenced in the County Court on 25 November 2013. The charges all arose out of the same incident, in which four members of the Frangos family were the subject of a home invasion and were robbed. A discrete charge of armed robbery was laid in respect of each victim.

3 Prior to the empanelment of the jury, a fresh indictment was filed and Lloyd Murrell and Kerry Murrell pleaded guilty to one charge of armed robbery. The applicant was arraigned the following day and pleaded not guilty to the charges on the earlier indictment. Following a trial the applicant was convicted and sentenced to six years and six months' imprisonment. He now seeks leave to appeal against his conviction.

4 At the outset of the hearing of the application, the applicant abandoned two grounds and sought leave to rely upon an additional ground of appeal. During the course of the oral argument, the applicant sought and was granted leave to reinstate one of the abandoned grounds, being ground 3. Thus the following three grounds were ultimately relied upon:

1. The verdicts of the jury were unsafe and unsatisfactory, as the guilt of the applicant was not the only reasonable inference that could be drawn from the circumstantial evidence against the applicant.
2. The learned trial judge erred in declining to exclude exhibits, namely a balaclava and air rifle as evidence.
3. The trial of the applicant miscarried because the learned trial judge failed to direct the jury that, before they could use the evidence of the witness Stacey Watson against the applicant, they would have to be satisfied that the applicant was present at, and a participant in, the

conversation at her home on 2 or 3 December 2010 between herself and Kerry and Lloyd Murrell regarding the Frangos family.

5 I have had the advantage of reading in draft the reasons of Priest JA. He has concluded that grounds 1 and 3 have been made out. I am unable to agree. In my respectful opinion both grounds are without substance. For the reasons that follow, I would refuse leave to appeal.

6 There are two important considerations which must be borne in mind in assessing the issues raised by the grounds of appeal.

7 First, as appears from the reasons of Priest JA at [104], the applicant's submissions were premised on the Crown case consisting of four pieces of circumstantial evidence. He submitted that the combined force of that evidence was insufficient to support a conviction. The four items of evidence which the applicant addressed were:

• the conversation between Lloyd, Kerry and the applicant, a few days before the robbery, in which Dianne and James Frangos were identified as a target for criminal activity;
• the finding of a pistol and a sawn-off air rifle with the applicant's DNA on the foregrip in a backpack in Kerry Murrell's bedroom;
• a laptop computer stolen in the robbery and found at the applicant's property some two months after the robbery; and
• the finding of four balaclavas at the applicant's property, one of which had the applicant's DNA around the mouth.

8 The Crown accepts that any one of these pieces of evidence, viewed in isolation, would yield an inference compatible with innocence. These four pieces of evidence cannot, however, be considered in isolation from each other or from the other evidence in the case. The circumstantial evidence is far more extensive than that alluded to in the applicant's oral argument. Both grounds 1 and 3 call for an assessment of the combined probative force of all of the relevant evidence.[1] Senior counsel for the respondent rightly submitted that upon proper analysis of all of the evidence, it was a 'powerful circumstantial case'.

9 The applicant was required to identify all of the pieces of circumstantial evidence that could be combined for that purpose. That included such pieces of evidence as might have resolved the jury's doubts about other pieces of evidence.[2] The applicant did not attempt to meet that obligation.

10 The trial judge did not identify for the jury the evidence that bore upon the issues in the trial. The Jury Directions Act 2013 applied to this trial. That Act maintains the trial judge's obligation that existed at common law to identify the evidence relevant to the matters in issue in the trial. Before the passage of that Act, trial judges had been obliged by the common law to direct the jury about so much of the law and the evidence as was necessary for them to decide the case. The principle stated in Alford v Magee[3] included the obligation to identify the issues and the evidence relevant to those issues. That principle has been the subject of attention in this Court[4] and the High Court. It was, for example, discussed in Fingleton v The Queen by McHugh J, who referred to the obligations of the trial judge to 'identify the real issues in the case, the facts that are relevant to those issues and an explanation as to how the law applies to those facts'.[5]

11 The common law obligations of a judge in every jury trial were summarised in R v AJS.[6] They include an explanation to the jury as to how the law applies to the facts of the case, identification of the issues in the trial, relating the issues to the facts of the case,[7] and summarising so much of the evidence as is relevant to the facts in issue by reference to the issues in the case.[8] The duty to expose the facts relevant to the issues was not confined to the ultimate facts in issue comprising one or more of the elements of the offence, but related also to the substratum of facts which were in dispute and which bore upon the resolution of the ultimate issues.[9] The evidence which was relevant to those subsidiary issues had also to be identified. Ormiston JA in R v De'Zilwa[10] spoke of the fallacy in assuming that jurors will recollect the same things that a trained and experienced lawyer would recollect. Moreover, the real significance of pieces of evidence may not be apparent when the evidence is given. A common experience of trial judges has been that the jury may not have recognised the significance of individual pieces of evidence or how that evidence relates to other evidence and supports an argument of a party during the course of the evidence.

12 The Victorian Law Reform Commission in its Jury Directions Final Report[11] recommended that judges continue to observe the common law requirement to refer the jury to the evidence which is relevant to the findings of fact they must make with respect to the contested elements. The Jury Directions Act 2013 has implemented that recommendation. Although the Act is intended to reduce the complexity and length of jury directions, ss 17 and 18 of the Act retain and impose upon the trial judge the duty to identify the issues in the case and to identify so much of the evidence as is necessary for the jury to determine those issues. Section 15 also imposes upon the trial judge the residual duty to give any direction necessary to avoid a substantial miscarriage of justice.

13 Sections 17 and 18 impose the duty in these terms:

[I]identify so much of the evidence as the trial judge considers necessary to assist the jury to determine the issues in the trial.

14 The trial judge has the task of identifying evidence that will assist the jury in resolving the issues. At the same time, however, the Jury Directions Act does not require the trial judge to summarise that evidence or remind the jury of its content.

15 In the present trial, the trial judge may have thought that, in view of the closing submissions, the jury would be well aware of the evidence that bore upon the issues and that it was therefore not necessary to identify that evidence. Whatever his Honour's reasons for not identifying the evidence, such an approach is not in conformity with the duty imposed under the Act. Whether the evidence is direct or circumstantial, all of the evidence that may be used to determine primary or subsidiary issues must be identified. As the applicant's case in the subject appeal demonstrates, there will often be a profound lack of appreciation of the circumstantial evidence that may assist the jury in the resolution of matters in issue.

16 It will therefore be necessary in these reasons to refer in some detail to the additional circumstantial evidence not addressed by the applicant during oral argument. Much of that evidence added greater cogency to the pieces of evidence addressed by the applicant on the appeal.

17 The second consideration is the necessity to have regard to the way in which the trial was conducted. Gleeson CJ observed in Doggett v The Queen:[12]

The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.[13]

18 As was the case in Doggett, there was here an attempt on appeal to present the defence response to issues in a new way. No attention was given to the way the defence at trial was conducted. In R v Luhan,[14] this Court said of the vice inherent in grounds of appeal that were premised on a different trial having been conducted from that which was actually conducted on the applicant's behalf:

Those who seek to challenge the result of a trial will be treated as bound by the manner in which the trial was conducted, and confined to the matters actually put in issue by them or by their counsel (except where a matter, thought [sic] not raised, can reasonably be seen to have emerged as a real question from the evidence actually adduced at the trial).[15]

19 This appeal provides an example of the necessity, when evaluating criticisms of the trial process and its outcome, to relate those criticisms to the manner in which the defence approached those issues at trial. It will therefore be necessary to make reference during these reasons to the position adopted by the defence on various issues.

20 In the view of Priest JA, the judge was obliged to give a number of other directions about how the different parts of the evidence were to be used. In my respectful opinion, no occasion arises on this appeal to consider whether any such directions were required.

21 The trial judge, as required under the Act, inquired as to what directions counsel thought were necessary. Counsel requested only one of the directions which Priest JA has identified. That direction formed the subject of a ground that was abandoned on appeal.

22 Save for ground 4, the grounds of appeal did not raise any other complaint as to the adequacy of the charge. No suggestion was made in oral argument that any of these directions should have been given. Given the manner in which the trial was conducted, the matters put in issue by the defence and the extent of the circumstantial evidence, the trial judge may have concluded that no such directions were necessary. Be that as it may, there being no ground of appeal or argument that complains as to these matters, the question whether any such directions should have been given does not arise for determination.

23 I turn to a detailed consideration of the evidence at trial, during which I shall address grounds 3 and 4.

24 In early December 2010 the applicant went with his aunt, Kerry Murrell, and his uncle, Lloyd Murrell, to the house of Stacey Watson in Ballarat. Stacey Watson knew each of them well, as her mother, Renee Aro, had previously been in a relationship with Kerry Murrell for some 15 years. Ms Watson had moved from Daylesford to Ballarat in 2008 but had kept up contact with Kerry. After making coffee, the four of them went and sat out on a little patio decking at the front of the house. During their conversation, Lloyd asked Ms Watson who was 'loaded' around Daylesford. She responded, 'Everybody knows it's Jim and Dianne Frangos'. In evidence-in-chief, Ms Watson said that Lloyd then turned to Kerry and the applicant and said 'fuck, yeah' and then 'they had a little chat between themselves'. Ms Watson said they were talking about going over to Daylesford to check out the place. They were discussing going to check out the café/restaurant of Jim and Dianne Frangos. She said she was familiar with the premises, because she had worked for the Frangos family for two and a half years. They asked her whether there was a safe at the premises. She said there was a safe there 'but it's only ever got the till money in it'. Ms Watson identified the date of the conversation by reference to her pregnancy and said that it was at the start of December 2010.

25 I pause in the narrative to deal then with ground 4, which was added by leave on the hearing of the appeal. Under cover of this ground the applicant submitted that the trial judge had erred by not directing the jury as to the circumstances in which the jury could use the conversation as evidence against the applicant. The short answer to this ground was that no such direction was sought. As the Jury Directions Act 2013 applied to this trial, the defence was obliged to inform the trial judge as to the directions that were required. The argument was raised for the first time on appeal that the evidence did not disclose that the applicant was present when the material conversation occurred or that he was a party to the conversations. These submissions were devoid of merit.

26 At trial, Ms Watson's testimony was not challenged save in one respect. It was pointed out that in her statement to police, she had said that in response to her telling the three Murrells that everyone knew that Jim and Dianne Frangos were loaded, it was Kerry Murrell who had looked at Lloyd and the applicant and had said 'fuck, yeah'. There was no cross-examination to suggest that the applicant was not present. Ms Watson agreed with defence counsel that she could not recall the applicant saying anything relevant to the Frangos family. But the effect of her unchallenged evidence was that the three Murrells together discussed the information she had given them, and that they inquired about the presence of a safe. There was no suggestion that the response that they would 'check the place out' did not reflect the common intention of all of them. Ground 4 must fail.

27 Plainly, this conversation, taking place only a few days before the robbery, was a particularly significant piece of evidence. As senior counsel submitted on the appeal, the inquiry made by the Murrells of Ms Watson revealed that they were asking her whom they should target for the purpose of committing a crime. The conversation constituted strong evidence of pre-concert to a joint criminal enterprise to rob the Frangos family.

28 Despite the state of the evidence, the applicant maintained on appeal that one could not be sure what purpose the Murrells had in making their inquiry of Ms Watson. The purpose of the inquiry would have been obvious enough to the jury. The cogency of the conversation in proof of the charges was, however, increased by the substantial body of evidence (to which I shall refer later) that established that Lloyd and Kerry were two of the robbers who entered the Frangos home a few days later. Ms Watson's sister, Jaymi, testified that Kerry Murrell told her shortly before the robbery that they were 'going to do a job'. Kerry Murrell told a number of people after the robbery that she had been involved.

29 If the jury had any doubt as to the purpose and motive for the Murrells' inquiry of Ms Watson a few days before the robbery, the conclusive evidence that Lloyd and Kerry were two of the robbers would have removed any such doubts. Hence, defence counsel stated in his closing address to the jury that the jury 'would not have much difficulty in concluding' that Lloyd and Kerry Murrell were two of the four persons who robbed the Frangos family. Not surprisingly, the prosecutor submitted to the jury in his closing address that the applicant would not have been present at such a conversation unless it was thought by all of the Murrells that he would be part of the anticipated future criminal activity.

30 On Thursday, 2 December 2010, Lloyd Murrell hired a red Holden Cruze, registered number BH85VZ, from Avis Car Rentals at 100 Milperra Road, Revesby, New South Wales. Whilst it was Lloyd Murrell who hired the vehicle, it was paid for with the credit card of his friend, Matthew Kamal. The vehicle was returned on 9 December 2010, having travelled 3118 kilometres.

31 On Saturday, 4 December 2010, at approximately 8:15pm, a male matching the description of Lloyd Murrell was outside the house of Dr Frederic Eggleston enquiring about the location of the Frangos house. Eggleston told the male that they lived in Webster Street, Ballarat and pointed out the house to him. The male was driving a red vehicle with yellow number plates. Dr Eggleston described the man as probably about six feet and fairly well built. As a result of the description of the man and the car, it was not put in issue at the trial that the man was Lloyd Murrell. That conclusion was of course fortified by the fact that some two hours later the Frangos family gathered at Webster Street were robbed, and that one of the robbers was Lloyd Murrell.

32 At approximately 6:30pm, James Frangos, aged 63, arrived home after working at his business located in Daylesford. The Frangos family had a barbeque dinner. Present at the house were James Frangos; his wife, Dianne Frangos; their daughter, Bianca Frangos; their other daughter, Melia Frangos; her husband, Timothy Scanlon; and their children, Otis (aged three years), Shaemus, (aged two years) and Raqual Frangos-Scanlon, (aged eight months).

33 At about 7:00pm, Bianca Frangos, who suffers from Down syndrome, went upstairs to bed. At about 8:00pm, James Frangos went upstairs, changed and lay on his bed reading. In the meantime Timothy Scanlon had put his three children to bed.

34 At approximately 10:30pm four persons, three of whom the prosecution alleged were Lloyd Murrell, the applicant and Kerry Murrell, together with an unknown offender, burst into the lounge room of the Frangos' home. Dianne Frangos noticed that the offenders were carrying 'poles' and 'guns'. Melia started screaming, which made the offenders agitated. One of the offenders then said 'We want the fucking money'. Dianne then responded and said, 'What are you on about?'. Hearing Melia scream, James ran downstairs believing that one of his grandsons may have scalded themselves. As James approached the lounge room, which was the only room on the ground floor that had its lights on, he saw Melia screaming, with two men, each wearing a balaclava and holding a gun, standing over her. James saw that Melia was being pushed to the ground by the two men. James said, 'Let my daughter go, you can have what you like'. James noticed that Timothy and Dianne were also present.

35 James noticed that the other persons were holding steel pipes. The offender holding what he described as a sawn-off shotgun was yelling and waving it towards the Frangos family in a threatening manner. Moments later, one of the offenders approached James from behind and hit him over the left shoulder with the steel pipe. Mr Frangos said that the man with the pistol was the 'biggest one' and he was doing most of the shouting. Mr Frangos said that he was of similar height to himself, being six feet and one or two inches tall, and chubby or thickset. It was not in issue at the trial that this description fitted Lloyd Murrell.

36 Mr Frangos described the balaclavas as dark and as having the eyes cut out, not sewn. Mr Frangos described the second man with a gun as a person of smaller stature. In cross-examination he said the second man was below average height, about five feet and six or seven inches tall. The second man had the sawn-off gun. The larger man had the pistol pointed at Melia's eye and the smaller man was forcing the longer pistol or gun in towards the mouth of Timothy, telling him that he would blow his brains out. Mr Frangos described the third and fourth persons as slight in stature and as about five feet eight inches tall.

37 As Mr Scanlon, the son-in-law of Mr Frangos, was deceased at the time of trial, an extract from statements made by Mr Scanlon to police and some of his evidence at the committal were read into evidence. This included his statement that one of the two men had a sawn-off air rifle.

38 At some stage the robbers indicated to Mr Frangos that they knew that he had a safe. They said they had information from staff but they would not say from whom. Mr Frangos said to them that they did not have money and they were going so badly that they could not even afford curtains. Mr Frangos said that he told the robbers not to disturb his daughter, Bianca, who was asleep in bed upstairs.

39 Mrs Dianne Frangos described the person who seemed to be issuing the orders as the larger one. He was a solid person. She said there was a slim, shorter one with a gun. She said the second one was more slender with skinny legs. She said that person was shorter than her, and that she was about five feet eight inches tall.

40 Dianne Frangos described the two persons holding metal bars as slender and about six feet tall. Mr Frangos told everyone to be quiet and to give the offenders what they wanted. He told the offenders to leave the children alone and explained to them that his daughter, who had Down syndrome, was upstairs. One of the offenders then demanded $150,000 cash from James and said 'don't try to tell us you haven't got it, we know you have and we will shoot you'. James perceived the threat as real, and that there was a possibility that he and his family would be killed. The offenders then asked about a safe and told the family that, if they did not comply, they would have to start shooting them and would chop off their fingers. One of the accused said that they had done this before. Dianne Frangos then opened the safe which was under the stairs, but it was empty. One of the offenders then said to Dianne, 'Hand over all your gold'. Dianne then handed over her watch but was allowed to keep her rings.

41 Whilst this was being done the other offenders started to go to other parts of the house. After returning, Dianne said there was no cash and that it must be at their business in Daylesford. The offenders then talked about going to the business in Daylesford. James said that the banking got done at 3pm and there may have been less than $1,000. The offenders then threatened to 'cut' up James. The offenders ransacked the house in search of valuables. As the offenders were doing this, James could hear the smashing of various items.

42 The offenders continued to make threats as they searched the house. Upstairs, the only lights on were in the passageway, and a dimmer light in Bianca's bedroom. During the ransacking of the house, Bianca began to cry and was calling out, 'What's going on?'. James went upstairs, escorted by one of the offenders, and was asked to take Bianca to the main bedroom. In the meantime Timothy, Dianne and Melia were taken to that bedroom. Timothy saw the offenders smash the phone off the wall and damage a mobile phone using a hammer.

43 Upon entering the main bedroom, James noticed that the rest of the family had also been taken there. The offenders commenced bagging up the jewellery, cash and other valuables. The offenders told the family not to contact the police. A short time later, the offenders returned to check that the family were not trying to escape. The offenders then left.

44 Police attended at the scene at approximately 11:40pm and commenced their investigation. Thirteen black cable ties were located in the driveway and a further eight cable ties were located in a garden bed nearby. There were a number of motor vehicles at the house, owned by Timothy Scanlon and the Frangos family. Two of the vehicles were unlocked and had been rummaged through. A number of items had been removed from the vehicle belonging to Mr Scanlon, including a Sony Cybershot digital camera.

45 The defence, by admission, agreed that on 4 December 2010 the following items were stolen from the address of the Frangos family:

(a) jewellery, cameras and a computer from James Dimitrios Frangos;

(b) jewellery, cash and ornamental dolls from Dianne Maxine Frangos;

(c) jewellery and cash from Melia Frangos; and

(d) computer equipment and cameras from Timothy Scanlon.

46 The jury would have had ample opportunity to observe the applicant during the course of the four day trial, and would have been able to determine whether the description of the slim small man was consistent with the stature of the applicant. As we were able to observe during the hearing of the appeal, the description given by James and Dianne Frangos of the height and stature of the small man holding the sawn-off gun was consistent with the applicant's appearance.

47 On 22 February 2011, police executed a warrant at the house of Kerry Murrell and made a forced entry to the house. Kerry Murrell, who was inside, attempted to block the police entry into a bedroom and had to be restrained. A black and grey backpack was found on the floor underneath a portable wardrobe. It contained a sawn-off air rifle and a pistol. The stock of the air rifle had been partially removed and the barrel shortened. The pistol in the same backpack was a .22 calibre semi-automatic pistol. Detective Campbell, in cross-examination, said that the diameter or bore of the air rifle was larger than a normal air rifle of that calibre, and was around six or seven millimetres. The handgun had a buff silver-coloured body with a black handle. A memory stick belonging to Mr Scanlon, which was stolen in the robbery, was found in Kerry Murrell's bedside table. The guns were sent to the Forensic Science Laboratory for examination.

48 On 18 February 2011, police executed a search warrant at Jess Way, Sebastopol and Luka Court, Sebastopol. They were houses adjacent to each other. At that time, Jess Way was the home of Lloyd Murrell and his wife, Carrie Brennan. The property was rented from Kerry Murrell. The house at Luka Court was, at that time, the home of the applicant. During the search of the premises at Luka Court, police seized four balaclavas and located a laptop computer. The laptop recovered from the applicant's home belonged to Mr Scanlon, and had been stolen during the armed robbery.

49 Alexandra Bate, a forensic biologist with the Victoria Police Forensic Services Department, gave evidence about DNA she found on the foregrip of the sawn-off air rifle found on the premises of Kerry Murrell. There was very strong evidence that the DNA located belonged to the applicant and one other person. In respect of one of the balaclavas found in the bag located at the applicant's premises, DNA from two people was found around the mouth area of the balaclava and the applicant was not excluded as a contributor. A likelihood calculation was performed and the result was that it was 17 billion times more likely that the forensics department would obtain that DNA profile if it originated from the applicant and another person than if it originated from two other individuals.

50 Ms Bate said it was possible for DNA to transfer from one item to another item. Simple things like shaking hands with people can transfer DNA. However, with each transfer step a lot of DNA is lost and therefore DNA transfer becomes a lot less likely the more steps that are taken. In this case, the interior of the backpack (in which the air rifle was found) was not sampled for DNA. It was possible that, if an item was placed inside a backpack and left inside there in cool, dry conditions with adequate ventilation, DNA from that item could transfer to the interior of the backpack or to other items that were also placed inside the backpack.

51 In respect of the balaclavas, Ms Bate said that it was not possible to say how long the DNA samples found on the balaclava had been there. Only one of the four balaclavas analysed came back with a DNA sample on it. There were no DNA profiles obtained in the samples taken from the other three balaclavas. In regard to the balaclava found to contain a mixed DNA sample, it was possible that two different people may have worn the balaclava at a different time.

52 No argument was pressed on the appeal that the balaclava should have been excluded from the evidence. To have maintained such a submission on appeal would have been contrary to the way in which the defence was conducted at trial. Defence counsel acknowledged in closing that the jury would not require much convincing that the balaclava found at the applicant's premises was used during the home invasion.

53 Ms Watson read in the newspaper of the home invasion of the Frangos family. Within the next few days following the robbery, Lloyd and Kerry Murrell returned to Ms Watson's house. She could see that Lloyd was not happy. He said, referring to the robbery, that there was 'fucking nothing' and asked her, 'Why did you tell us that?'. He referred to the fact that James Frangos had said that he could not even afford to buy Dianne curtains. He said they had 'crappy little jewellery'. He told her who did the job[16] and that they had taken cable ties and guns to the premises. He said that Jim and Dianne were there and that the family was terrified. He said that Bianca Frangos was upstairs and that there was another couple there but he did not know who they were. Kerry told Ms Watson that she had taken the cable ties and that the others had the guns. Not only did they admit their part in the robbery but this evidence, which was not challenged, revealed facts concerning the home invasion which only those who had committed the robbery would have known.

54 As described above, during the search of Kerry Murrell's home Detective Highthorn located a memory stick in her top bedside drawer. The memory stick was later identified by Timothy Scanlon as having been stolen during the armed robbery.[17] Detective Highthorn also came into possession of a bag full of dolls at the address of Lisa Bright and Tekin Saner, who was the half-brother of Lloyd Murrell. The dolls were identified later by Dianne Frangos as coming from the robbery. Defence counsel established in cross-examination that Lloyd Murrell was 'known' to police and had an extensive number of associates who were also 'known' to police.

55 Jaymi Watson, the sister of Stacey and the daughter of Renee Aro, was living with her mother and Kerry Murrell at Jess Way, Sebastopol at the end of 2010. She would see Lloyd and the applicant at the Jess Way and Luka Court addresses. Jaymi then moved with Kerry to Ligar Street. She continued to see Lloyd and the applicant at that address. When they came around to Ligar Street they would talk out the front or keep to themselves, or remove themselves down to the back of the property. This evidence established an ongoing association between Kerry Murrell and the applicant and Lloyd Murrell. Around that point of time she could remember Kerry saying that, 'She was going to do a job with other people'. In late 2010, on a night Kerry got home late, she gave Jaymi a black Sony Cybershot camera and a gold watch. Over the next couple of days Jaymi saw the newspaper which referred to the Frangos robbery. The camera given to Ms Watson was later identified by Timothy Scanlon as having been stolen from his car at the Frangos' address on the night of the armed robbery.

56 Renee Aro said that, in late November or early December, she went to Jess Way to drop off her dog to Kerry. At that time Kerry was in the process of moving out and the applicant was in the course of moving in. He was then renting at Luka Court, which abutted Jess Way. She further said that in December 2010, not long after she and Kerry had broken up, she met Kerry. She observed that Kerry was wearing a pair of jeans that they had seen a couple of months earlier in Daylesford and was wearing brand new shoes and a T-shirt. Renee asked her why she was looking so flash and whether she was all cashed up. Kerry asked her if she wanted some money. Over coffee, Kerry asked her if she had heard about the Frangos robbery. Kerry said 'We did it' and told her the persons who had done the robbery

56 with her.[18] Kerry said that one of the others had a gun. She said that one of them dropped cable ties on the driveway. In addition to her admissions, her statements revealed details of the circumstances of the home invasion that only the robbers would have known.

57 I turn then to ground 3, under which it is said that the trial judge should have excluded the evidence of the finding of the firearms in Kerry Murrell's bedroom. The ground referred only to the exclusion of the air rifle and the balaclava. Application was made to exclude that evidence on the basis of the depositions. The trial judge was referred to only some evidence of a description of the guns by two of the victims. There was other significant evidence of the description of the guns that was not mentioned. It was submitted before the trial judge that the description of the firearms was so different to the firearms found that the evidence should be excluded, (presumably pursuant to s 137 of the Evidence Act 2008), because it had little probative value but potentially great prejudice. The prejudice was said to arise from the fact that the applicant's DNA was found on the foregrip, so that the applicant would be associated with the possession of an illegal weapon.

58 The trial judge rejected the application on the basis that, since the guns found together had some resemblance to the guns described and one had the applicant's DNA on it, the evidence had probative value. In my view his Honour was plainly right to have done so, even on the limited evidence to which he was then referred.

59 At the time that the application to exclude the evidence was made, counsel for the applicant may not have recognised that there was circumstantial evidence, other than the victims' descriptions of the guns, that permitted the conclusion that in all probability the guns found in Kerry Murrell's possession were the guns that had been used in the armed robbery. It is notable that, by the end of the trial, the defence was not disputing that the guns could have, and were likely to have, been used in the robbery. The application to exclude the evidence was not renewed. In closing address, defence counsel acknowledged that it was likely the jury would reach that conclusion. Defence counsel conceded that the Crown 'probably won't have too much trouble' in convincing the jury that the guns recovered from Kerry Murrell were used during the home invasion. No request for an anti-propensity direction was sought, presumably because it was accepted that the jury would reason that these were the guns used.

60 In his written case on appeal, the applicant conceded that the guns found 'generally matched the description of the two firearms used during the offences'. He submitted nevertheless that their 'general similarity' of appearance meant that the guns had only limited relevance, thus giving rise to 'an inherent danger that the jury would reason that they were the weapons used in the commission of the offences'. The argument was maintained that the guns found had very limited probative value, which was outweighed by the risk of prejudicial propensity reasoning. But the applicant did not go so far as to submit, as Priest JA has concluded, that the evidence established that the guns could not have been used in the robbery.

61 Like the initial application at trial, the written case and oral argument on appeal were fatally flawed. The question whether the guns found were those used in the robbery was not to be answered solely by reference to the victims' descriptions. The applicant's argument did not take account of all of the evidence of the descriptions of the guns, or of the other circumstantial evidence which made it likely that they were the guns used. That evidence would have removed any possible jury doubts concerning the guns. Even if the resolution of the issue had depended upon the descriptions of the guns given by the three victims, their accounts provided ample basis for the jury to conclude that they were the weapons carried during the home invasion.

62 The principles governing the admission of this category of circumstantial evidence are not in controversy. First, evidence of items that could have been used in the commission of the crime charged, and which are found in circumstances connected to the offender, will ordinarily be admissible.[19] Such evidence may be a description of the item by a witness to the crime, or it may be evidence that otherwise connects the item to the crime. In Thompson and Wran v The Queen,[20] Barwick CJ and Menzies J acknowledged that evidence of possession of 'tools of the trade' was admissible if they were or might have been used to commit the crime. Their Honours cited with approval the dictum of Lord Goddard CJ in R v Sims:[21]

Thus, in the case of burglary, evidence is admissible that housebreaking implements such as might have been used in the crime were found in the possession of the accused.[22]

Evidence is also frequently admitted in criminal trials to prove that the accused had possession of equipment needed to commit the crime in question even though that evidence discloses the criminal propensities of the accused. In practice, such evidence is led to prove that the accused's propensity makes it likely that he or she committed the crime in question. Thus evidence is admissible, virtually as of course, that the accused was in possession of instruments that might have been used to commit the crime in question. It is unreal to think that a jury uses such evidence simply to prove that the accused is a person who had the means to commit the crime in question. Such evidence is not admissible, however, if it does no more than show that the accused has a propensity to commit crimes of that sort.[23]

64 Second, where the evidence is clear that the items were not used in the crime, the evidence is inadmissible. If there is an absence of evidence of similarity or resemblance of the items found to those used in the crime charged, the items will throw no light on the probability that an offender committed the crime charged, and hence the evidence has no probative value. The evidence is no more than evidence of a particular criminal propensity and the means to indulge that propensity, and is inadmissible.

65 In Thompson and Wran,[24] the evidence made clear that the tools of the burglar in the possession of the accused had not been used in the crime charged. The evidence proved only propensity and was inadmissible.[25] Again, in Driscoll v The Queen,[26] the weapons found in the accused's possession had not been used to commit the offence. They were therefore not probative of the guilt of the accused and should not have been admitted.[27] By contrast, in Festa v The Queen[28] the 'tools of the trade' found were not those used in the crime charged, but the evidence had probative value because it linked the accused to a particular and relevant modus operandi.[29]

66 Third, where there is tenuous evidence that the items may be connected to the crime, the evidence, though admissible, may be excluded under s 137 of the Evidence Act 2008 where its prejudicial effect outweighs its probative value.

67 The applicant attempted to invoke the third of these propositions. He argued that the finding of the guns should have been excluded as prejudicial, on the narrow basis that the only relevant evidence connecting the guns found to those used in the offending were the descriptions of the firearms by Mr and Mrs Frangos. It was said that there were such differences between their descriptions and the guns found that the evidence of the latter should have been excluded. This submission must fail.

68 Even if contrary to my view this complaint fell to be determined only by reference to the description of the firearms given by the victims and without regard to all of the other circumstantial evidence bearing on that issue, those descriptions were plainly sufficient to justify the conclusion that the guns found could have been those used in the robbery. I turn first to the descriptions of the guns by the victims before identifying the other circumstantial evidence that, in combination, renders it highly likely that the guns found were those used in the robbery. In his statement made on the day after the robbery, Mr Scanlon unequivocally nominated the sawn-off gun as a 'sawn off air rifle', even though a sawn-off air rifle is not a usual armed robber's tool. According to Mr Frangos' account, the man with the sawn-off firearm was forcing it in towards the mouth of Mr Scanlon, telling him that he would blow his brains out. Mr Scanlon thus had the best opportunity to view the sawn-off firearm.

69 The following evidence of Mr Scanlon at the committal proceeding was also read into evidence:

(Inaudible) Do you (inaudible) of the firearm you described as being a sawn off firearm?---I describe it as a sawn off air rifle.

You said in your statement, in your witness statement, and we can go to it if need be, but you said this, that he had - you think it was the sawn off air rifle?---Yes, correct.

By that (inaudible) was a sawn off air rifle but you weren't entirely sure?---I wasn't entirely sure because it was dark and they were being waved around all the time.

Right. So what about the fact that it was sawn off (inaudible) recollection specifically?---Well, it - it was (indistinct) it was sawn off to the, um, to the stock so the barrel wasn't extended past the stock.

I'm not sure (inaudible) understand (inaudible)?--- (Inaudible) - - -

(Inaudible) firearm you said was sawn off that you observed?---The - the barrel.

All right. So - - -?---The barrel had been shortened.

All right. The barrel had been shortened but that was the only part of the firearm that had been shortened that you observed?---Er, the - the stock may (inaudible) been sawn off, I can't recall. It was hard to tell.

Whether or not it was an air rifle or not, you say now you're not quite as sure. Is that fair to say?---Oh, I'm sure it was some sort of gun.

Yes. My question was whether it was an air rifle or not, you agree with me, do you, that you're not entirely sure about that?---I'm not entirely sure about that.

70 During the hearing of the appeal, this Court was not referred to the evidence of Mr Scanlon by either party. I do not doubt that this was an oversight, but it was a serious one. Mr Scanlon's account provided ample basis for the conclusion that the guns found could have been those used in the robbery.

71 The pistol found was quite similar to the small gun described by Mr Frangos. He said it was 'small, blue, and metal'. He said he 'assumed, having seen one before' that it looked 'very similar to a nine calibre pistol'. Mr Frangos thought the sawn-off firearm was a shotgun, single barrelled and dark. When asked to describe the guns, he said, 'They had gloves on, you know, but the most important thing was that they had Melia down on the floor, and Timothy, and virtually had their guns, you know, in their faces and mouths'. This evidence derives from the following passage in his examination-in-chief:

Q: Yes. All right?

A: Entered the front lounge room, which is to the left of the stairway, and noticed two guys in balaclavas - guns, one a shotgun and the other a pistol.

Q: You say shotgun. Can you describe it any further than that?

A: They had gloves on, you know, but the most important thing was that they had Melia down on the floor, and Timothy, and virtually had their guns, you know, in their faces and mouths.

Q: I just want to ask - You referred to a shotgun?

A: Yes.

Q: Can you describe that weapon any further than just saying it was a shotgun?

A: Was a ...

Q: For example are you able to describe its length?

A: It was a - it was a sawn-off, I would say.

Q: Colour?

A: And single-barrelled.

Q: Colour?

A: Just dark.

Q: And the other?

A: The other was a small, blue, metal - what I assumed, having seen one before - looks very similar to a nine calibre pistol.

Q: Sorry, nine calibre pistol, did you say?

A: Yeah, small handgun.

Q: Small handgun - all right. Can I ask you this then? In terms of the - you know, I'm not a gun expert but as I understand it pistols can be divided into revolvers and automatic pistols?

A: Umm.

Q: Is it one or the other of those?

A: Look I couldn't - I wouldn't - I am not that experienced.

72 Mr Frangos was cross-examined about the firearms. It was suggested to him that his attention would have been focused on the two firearms that he saw. He said:

A: Not really. More - more the screaming and the yelling that they were conducting, the threatening way that they were treating us and the ramifications of non-compliance.

Q: Is it true though, that both firearms were, if you like, held quite close to you at various times?

A: Not to me, no.

Q: But would it be fair to say that you saw both firearms up close?

A: I really only got the best look at the firearms in the room with the - when the lights were on. I was then - from then on aware that the guns were there.

Q: Now, if I understand correctly, you actually served in Vietnam?

A: Yes.

Q: A long time ago?

A: Yes.

Q: And as a result you got some knowledge of firearms. Is that right?

A: Yes.

Q: And it's because of that for example that you would say that certainly the handgun looked like a 9mm pistol of some kind. Is that right?

A: Yes.

Q: But you couldn't go so far as to say whether it was a revolver-type handgun or one of those handguns that has the magazine in the ?

A: Look it - I - I - no, I can say that, because you mean like a cowboy cowboy gun as opposed to a...

Q: A magazine-type firearm?

A: Yes, yes, no, no it was - it was the second one - magazine-type gun.

Q: So it wasn't a six shooter, if I can put it that way?

A: No.

Q: And you would also say that the handgun was a dark-coloured handgun?

A: Yes, I - I think so. Yes.

Q: In other words, it was black, is that right?

A: Well, I think so, yes. Metallic, I would imagine. Look, again, I wasn't focused on the colour of the gun.

Q: Okay. And as for the sawn-off firearm that you saw, you would say that that was a shotgun, probably a 12 gauge, is that right?

A: I thought that, yes.

Q: Yes and again, you know the difference, for example, between a rifle and a shotgun, don't you?

A: I - I do, but again, I never - apart from the fact that - noticing that it was held, like in the position it was, I - yes, I felt it was a sawn-off, and yes, thought it was a - a - a shotgun.

73 During argument on the appeal, attention was drawn to the difference between the bore of a 12 gauge shotgun and the bore of an air rifle. Again, evidence relevant to that question was not referred to. Detective Campbell, when asked by defence counsel in cross examination to hold up the air rifle and show the jury the width of the barrel, volunteered that the 'diameter of the bore was about 6 or 7 millimetres but it was larger than a normal air rifle of that calibre which is .177'.

74 The prosecutor, in closing, referred to Mr Scanlon's evidence. He submitted to the jury that the purpose of sawing the air rifle down was to make it look like a sawn-off shotgun. Mr Frangos, upon seeing a weapon like that, might think 'sawn off shotgun'. On the appeal, senior counsel for the Crown was asked whether Mr Frangos, having served in Vietnam, would be able to tell the difference between a shotgun and an air rifle. Counsel submitted that, as Mr Frangos was confronted with the sight of the two guns being held to his children's heads, no particular reliance should be placed upon his 'thought' about the weapon. It is well recognised that fear and stress, particularly when a person is faced with violence, can affect perception and result in inaccurate observations.[30] The transcript reveals Mr Frangos' reservations, and his qualified response to the suggestion that he knew the difference between a rifle and a shotgun reflected the stressful circumstances with which he had been confronted.

75 As for the colour of the small pistol, his answers were heavily qualified. He thought it was 'dark'. When it was suggested it was 'black', he said he thought so but imagined it was metallic. He said he was not focussed on the colour.

76 Counsel for the applicant placed great reliance upon the testimony of Mr Frangos. With respect, I do not agree with the conclusion of Priest JA that Mr Frangos' evidence must be viewed as the 'best' evidence of the description of the guns, or that his evidence compels the conclusion that the guns found were not those used in the home invasion.

77 The evidence of Mrs Frangos about the two firearms should also be noted. In chief, when asked whether she could describe the guns, she said 'No to be honest, I can't, because I was so traumatised by it all, overwhelmed, terrified'. The passage from her cross-examination was as follows:

Q: It would be fair to say that the two firearms, that is the guns, they were both black?

A: I think so. I mean, I - you know, a gun is a gun to me.

Q: But if you had to describe the colour of the two firearms, you would say they were two black firearms; is that right?

A: Well I would have thought so, yes.

78 For the evidence to be admissible, it needed to establish no more than that the guns found could have been the guns used in the robbery. Analysing the description of the guns by Mr and Mrs Frangos in isolation, as the applicant urged the Court to do, without reference to Mr Scanlon's evidence, it could not be said that their descriptions bore no resemblance to the weapons found. Moreover, as has been seen, much in their descriptions was equivocal. Any differences in the descriptions, arising from their responses to suggestive questioning, did not create an obstacle to the conclusion that the guns found 'could' have been the guns used.

79 As I have pointed out, senior counsel for the applicant did not submit that the evidence required the conclusion that these guns were not used in the robbery. He contended only that the evidence should have been excluded as prejudicial. The respondent submitted in reply that ground 3 should have remained abandoned, as the conclusion was inescapable that the weapons found could have been used in the robbery. I agree. Once the account of Mr Scanlon is added, the conclusion was inevitable that the guns could have been those used in the home invasion. Indeed, the evidence made it highly probable that that was the case.

80 For reasons already given, however, it was necessary to view the victims' descriptions of the weapons in combination with the other circumstantial evidence, which made it more likely that the guns found were those used in the robbery. Quite properly, the applicant's counsel at trial recognised that the combined force of all of the evidence, including the descriptions of the weapons, provided ample evidence to satisfy the jury that these weapons were used in the robbery.

81 The following evidence established the high likelihood that those were the guns used. The three Murrells had, some days before the robbery, disclosed to Ms Watson their joint interest in robbing the Frangos family. The guns were found in the possession of Kerry Murrell. (As noted earlier, both Kerry and Lloyd Murrell pleaded guilty to the charge of robbing the Frangos family. That evidence was not before the jury.) There was overwhelming evidence that Kerry Murrell was one of the robbers, and was one of the two persons who had metal bars during the home invasion. She tried to prevent the police entering the bedroom where the two guns were found. They were hidden in her bedroom. The two guns were found together. They were a small pistol and a sawn-off firearm.

82 All the victims describe the guns as a small pistol and a sawn-off firearm. Mr Scanlon describes one gun as a sawn-off air rifle. The weapons found were similar to those described by the victims. It was not disputed at trial that the applicant's DNA was found on the butt of the sawn-off rifle and on the balaclava. The defence conceded before the jury that they would 'without much trouble' find that the guns and the balaclava with the applicant's DNA on it were used in the robbery. The description of the man holding the sawn-off gun, as smaller than average height and about five feet and six or seven inches tall, fitted the description of the applicant. This more extensive consideration of all of the evidence bearing upon the firearms leads inexorably to the conclusion, in my respectful view, that it was highly probable that these were the guns used in the robbery.

83 In his reasons, Priest JA points out that none of the victims were asked to express any opinion about the firearms that were found. Senior counsel for the respondent, who has very extensive trial experience, submitted that he would never show such items to a witness if they had not already been shown to the witness before trial, presumably because it would not then be known what the witness would say. That is the kind of forensic decision which a prosecutor is entitled to make. Even if that feature be remarkable and the respondent did not accept that it was it does not advance the question whether it was open on the evidence to conclude that the guns might have been those used in the robbery.

84 In a case where the prosecution does not intend to adduce positive identification evidence of an item, there is no requirement that the item be shown to the witness before or during the trial. It is not incumbent upon investigators to have shown the item to the witness before trial. There is no basis for the suggestion made on the appeal that the investigators should have had the witness view a range of items to see if one could be selected as the item used.

85 It is not uncommon for a witness to be shown such an item for the first time at trial. It is a practice referred to by Tadgell J in R v Theos,[31] and by Winneke P in R v Callaghan.[32] It was a course approved by the High Court in Evans v The Queen.[33] In Evans, all of the members of the High Court concluded that there was nothing unfair in witnesses being asked for the first time at trial whether items of clothing shown to them were similar to those the robber had worn.

86 It is a matter for forensic decision whether the prosecution shows an item to a witness in court in order to establish that the item is similar to that used in the offence. If that is not done, and defence counsel does not explore the issue of similarity in cross-examination, the question of any resemblance of the item to that used in the offence will depend only upon the inferences to be drawn from their description in evidence. But proof of whether the item found is connected to the crime will often rest on evidence which goes beyond descriptions of the item by the victim. That was the case in this trial.

88 As to the ground that the verdict is unsafe and unsatisfactory, I have earlier set out all of the other circumstantial evidence which connected the applicant to the robbery. It was but faintly suggested on the appeal that ground 1 could succeed if the guns found were properly before the jury.

89 The defence, in closing, rested its argument on what were said to be possible innocent hypotheses for how the applicant's DNA came to be on the gun and balaclava. It was also said that there were possible innocent hypotheses for how the applicant could have come into possession of Mr Scanlon's computer. Defence counsel urged the jury not to find the applicant guilty by association with Lloyd Murrell, who was known to the police. He advanced the hypothesis that other

associates of Lloyd, also known to the police, could have participated in the home invasion.

90 Because the circumstantial evidence in combination was compelling, it was plainly open to the jury to exclude these possible hypotheses and convict the applicant. The jury deliberated for only 90 minutes before doing so.

92 I would refuse the applicant leave to appeal against his conviction.

93 Following a trial in the County Court, on 5 December 2013 the applicant was found guilty of aggravated burglary (charge 1), and four charges of armed robbery (charges 2, 3, 4 and 5), relating to a terrifying home invasion which occurred in Ballarat on 4 December 2010.

94 Initially the applicant sought leave to appeal on three grounds. At the outset of the hearing of the application on 20 October 2014, counsel sought to abandon two of the grounds of appeal, and to add a further ground. As the hearing progressed, however, counsel thought better of his abandonment of one of the grounds, and sought leave to re-instate it. The Court directed counsel for the applicant to file a fresh notice containing the grounds he sought to agitate. In the result, there are now three grounds of appeal:

1. The verdicts of the jury were unsafe and unsatisfactory, as the guilt of the applicant was not the only reasonable inference that could be drawn from the circumstantial evidence against the applicant
2. The learned trial judge erred in declining to provide a direction to the jury with respect to the doctrine of recent possession with respect to an exhibit, namely a laptop computer.
3. The learned trial judge erred in declining to exclude exhibits, namely a balaclava and air rifle as evidence.
4. The trial of the applicant miscarried because the learned trial judge failed to direct the jury that, before they could use the evidence of the witness Stacey Watson against the applicant, they would have to be satisfied that the applicant was present at, and a participant in, the conversation at her home on 2 or 3 December 2010 between herself and Kerry and Lloyd Murrell regarding the Frangos family.

95 For the reasons that follow, I would grant leave to appeal, allow the appeal and enter a judgment of acquittal on each charge on the indictment.

96 Stacey Watson lived in Ballarat. Her mother had, at one time, been in a long-term same-sex relationship with Kerry Murrell, who was Lloyd Murrell's sister. The applicant is Lloyd Murrell's nephew.

97 The prosecution's case was that, on 2 or 3 December 2010, Kerry Murrell, Lloyd Murrell and the applicant visited Ms Watson (although Ms Watson, in her evidence, said variously that the visit was 'about February', or 'end of November, start of December' 2010). In the course of conversation, Lloyd Murrell asked, 'Who is loaded around Daylesford?'. Ms Watson, who had previously worked at James and Dianne Frangos' café in Daylesford, replied, 'Everyone knows it's Jim and Dianne Frangos'. Lloyd Murrell then asked Ms Watson about the café premises, including the location and contents of the safe.

98 On 4 December 2010 at approximately 8:15pm, a male - almost certainly Lloyd Murrell - asked Frederic Eggleston for the location of the Frangos' home, which he then pointed out.

99 A little over two hours later, at about 10:30pm, four armed intruders disguised with balaclavas entered the Frangos home. There is no doubt about the identity of two of the intruders, since, on 27 November 2013, Kerry Murrell and Lloyd Murrell both pleaded guilty to a single charge of armed robbery of James Frangos, Dianne Frangos, Melia Frangos and Timothy Scanlon, relating to the invasion of the Frangos home. The applicant stood his trial on an indictment containing one charge of aggravated burglary (relating to the Frangos home in Ballarat), and four charges of armed robbery (one charge for each of the four victims), and, as I have said, was found guilty by the jury empanelled to try him. Police did not discover the identity of the fourth offender.

100 At the time their home was invaded, James Frangos and Dianne Frangos were present, as were their daughters Bianca (who has Down Syndrome) and Melia. Melia's husband, Timothy Scanlon (now deceased), and their three children, Otis (aged 3 years), Shaemus (aged 2 years) and Raqual (aged 8 months), were also in the house.

101 The four offenders demanded money. They threatened James Frangos, Dianne Frangos, Melia Frangos and Timothy Scanlon with violence. James Frangos was struck with a metal pole. Eventually, having ransacked the house, the intruders left with a quantity of cash, jewellery, cameras, computer equipment and ornamental dolls.

102 Police executed search warrants at properties belonging to, and being rented by, the offenders. At the applicant's home, Timothy Scanlon's laptop computer, and a bag containing four balaclavas, were located. DNA from two people - the applicant being one - was found in the mouth area of one of the balaclavas. A .22 pistol and sawn-off air rifle were found at Kerry Murrell's home. The applicant's DNA, along with the DNA of others, was found on the fore-grip of the sawn-off air rifle. Porcelain dolls belonging to Bianca Frangos were later found at the home of Lisa Bright, who was the partner of the applicant's step-brother, Tekin Saner. A camera belonging to Timothy Scanlon was later seized by police at the home of Jaymi Watson, who had formerly lived with Kerry Murrell. The camera had been given to her by Kerry Murrell in early December 2010.

103 In his charge to the jury, the trial judge described the central issue in the case:

The contest in this case is has the prosecution proved beyond reasonable doubt that the accused was a participant in this joint venture that took place at the home of the Frangos family on 4 December 2010.

The defence says, the prosecution simply have not proved that. They have proved that all of these offences were committed, they have proved that there was a joint venture of that kind going on. They have proved that somebody, or a group of people, did carry out an aggravated burglary and did carry out each of the armed robberies that took place, and that they did carry weapons in the form of guns and other weapons. And that there were a number of other persons present in the house when those offences occurred. That is, persons other than the persons who were involved in the commission of the offence.

So the defence says, 'Well look, we do not dispute that all of the elements of all of these offences was committed by a group of people who were participating in a joint criminal venture. What we do dispute is that the evidence demonstrates that the accused was one of those people'. So clearly that is the contest in this case.

104 There were four aspects to the prosecution's circumstantial case (although, it must be said, the judge gave inadequate directions about these aspects in his charge, a matter to which I will return). The four aspects were:

• First, the conversation at Stacey Watson's home which, it might be said, identified James and Dianne Frangos as the possible targets of criminal activity.

• Secondly, the finding of the laptop computer at the applicant's property a little over two months after the offences.

• Thirdly, the finding of four balaclavas at the applicant's property, one of which held his DNA.

• Fourthly, the finding of the .22 pistol and the sawn-off rifle with the applicant's DNA on the fore-grip, in a backpack at Kerry Murrell's home.

105 Stacey Watson gave evidence that she had known Kerry Murrell, who had been her mother's partner, since she was a child. In 2010, about February, Kerry Murrell, Lloyd Murrell and Anoir Murrell visited her at her home in Ballarat. Lloyd asked her, 'Who is loaded around Daylesford?', and she replied, 'Well, everybody knows it was the Frangos family'. Lloyd Murrell turned to the others and said, 'Fuck, yeah'. Ms Watson - who had previously worked at a café run by 'Jim and Dianne' - said that 'they' talked about going to Daylesford to 'check out' the café. Ms Watson gave evidence that 'they' asked her if there was a safe, and she told them, 'Yes, but it's only ever got the till money in it'. The three then left.

106 Ms Watson said that, following the meeting, she read about the Frangos' home invasion in the newspaper, and a week or two after doing so Lloyd and Kerry Murrell visited her. Lloyd Murrell said, 'There was fucking nothing', and 'Why did you tell us that?'. He told her that they had 'nothing' - just 'crappy little jewellery' - and 'Jim couldn't even afford to buy Dianne curtains'. Lloyd also told her that they took cable ties and guns into the house, and that 'the family was terrified'.

107 In cross-examination, Ms Watson said that in a conversation of about 45 minutes in total, discussion of the Frangos family took 'about 30 seconds or thereabouts'. She could not recall the applicant saying anything.

108 Frederick Eggleston said that on 4 December 2010 he was living in Ballarat. At about 8:15pm he was in his front yard when a man came past and asked him whether he knew where Mr and Mrs Frangos lived. The man said that he wanted to deliver something to them. Mr Eggleston gave evidence that he pointed down the street and gave directions to the Frangos home.

109 James Frangos gave evidence that, in the evening of 4 December 2010, he was at home in Ballarat with his wife, his daughters, his stepson and his grandchildren. He was upstairs reading when, at about 10:30pm, he heard 'very violent screaming, and aggressive shouting'. Going downstairs, he entered the lounge room and 'noticed two guys in balaclavas guns, one a shotgun and the other a pistol'. The men had gloves on, and 'they had Melia down on the floor, and Timothy, and virtually had their guns, you know, in their faces and mouths'. Mr Frangos said, 'The large chap had the pistol pointed at Melia's eye ... and the other chap was, sort of, forcing the longer pistol or gun in towards the mouth of Tim, and telling him that he would blow his brains out'. The third person had a piece of metal scaffolding taken from the yard. Mr Frangos said he 'lunged forward' and was 'struck from behind' on the shoulder. He then realised there was a fourth person. Mr Frangos gave evidence of a variety of threats of violence that were made; of the safe being opened, but being empty; of his home being ransacked, and cash, jewellery and other valuables being taken; of being placed in a room, the door of which had its handles broken off by the intruders; of forcing the door; and of raising the alarm.

110 Mr Frangos described the shotgun as 'a sawn-off', 'single-barrelled' and 'dark'. The other gun, he said, was 'small, blue, metal ... very similar to a nine calibre pistol'. When cross-examined he agreed that he had served in Vietnam, and had 'some knowledge' of firearms. He agreed that 'certainly the handgun looked like a nine millimetre pistol of some kind', a 'magazine type gun' as opposed to a 'six shooter'. He thought it was 'black' and metallic. Mr Frangos knew the difference between a rifle and a shotgun, and he thought the sawn-off weapon was a shotgun. He agreed that the sawn-off firearm that he saw was a shotgun, 'probably a 12 gauge'.

111 One of the men was wearing a 'dark, either navy blue or black' balaclava. He said, 'It was a knit, as were the others, and it had the eyes cut out'[34] - 'the eyes weren't sown', they 'were just cut'. In cross-examination he said that the other three balaclavas 'all had the similar cut out type holes, and I looked at the eyes'.

112 Dianne Frangos also gave evidence describing the terrifying events in her home, which commenced with four armed individuals 'bursting' in. All of them had 'black balaclavas'. In cross-examination she added that all of the balaclavas had holes 'for the eyes and the mouth'. In evidence-in-chief, she said that she could not describe the guns because she was 'terrified', and 'was so traumatised by it all, overwhelmed'; although under cross-examination she agreed that she thought that 'they were two black firearms'. Her evidence as to what occurred in the house was generally in accord with her husband's, and I need not repeat it.

113 Detective Leading Senior Constable Steven Campbell gave evidence that he executed a search warrant at Kerry Murrell's home on 22 February 2011. He said, 'During the search [of a bedroom], Detective Stepnell, who was assisting me in that room, brought to my attention a black and grey backpack that was on the floor, underneath what I would call a portable wardrobe against the eastern wall of that bedroom, and the bag contained a - an air rifle which had the stock partially removed and the barrel shortened, and a .22 calibre semi-automatic pistol'. The sawn-off air rifle and .22 pistol became exhibits in the trial. In cross-examination, he said the pistol had a 'buff silver-coloured body, with a black plastic handle'.

114 Neville Leishman, a Senior Constable, was involved in the execution of a search warrant on the applicant's property on 18 February 2011. A HP laptop computer - belonging to Timothy Scanlon - was located, as was a bag containing four balaclavas.

115 Alexandra Bate, a forensic biologist with the Victoria Police Forensic Services Department, said that a 'mixed DNA profile from at least two people' was taken from the fore-grip of the sawn-off air rifle. The likelihood ratio provided 'strong support' that the DNA had originated from the applicant and another person. Further, one of the four balaclavas rendered 'a mixed DNA profile from at least two people'. There was 'extremely strong support for the proposition that the DNA originated from [the applicant] and one other person'.

116 Ms Bate gave evidence that it is possible for DNA to be transferred from one item to another item by such simple things as shaking hands. Secondary transfer of DNA was possible. For example, if person A were to shake person B's hand, and person B were to then pick up a coffee cup, person B might transfer person A's DNA onto the coffee cup even though person A has not touched the cup. The sawn-off rifle had been found in a backpack. DNA could transfer to the interior of the backpack from items in it, thence to other items that were also placed inside it. As to the balaclavas, it was not possible to say how long the DNA samples found on the balaclava had been there. Only one of the four balaclavas analysed came back with DNA detected on it, there being no DNA profiles obtained in the samples taken from the other three balaclavas. Ms Bate agreed that, with respect to the balaclava found to contain a mixed DNA sample, it was possible that two different people may have worn the balaclava at different times.

117 Although not adverted to in the written cases, in the respondent's schedule of evidence (filed for use with respect to the first ground of appeal), in the Registrar's neutral summary or orally by counsel in the course of the hearing in this Court, there is one further piece of evidence to which I should make reference, drawn to my attention by another member of the Court following the conclusion of oral argument. Timothy Scanlon had died subsequently to giving evidence at committal proceedings, but prior to trial. The prosecutor was permitted to read into evidence the following extract of Mr Scanlon's evidence given during his cross-examination in the course of committal proceedings on 1 March 2013. Having observed that 'the recording in this committal was not ideal, and there are a number of sections which are inaudible or indistinct', he read aloud the following:[35]

It begins, on line 28, p.165, and it reads as follows. Question, '(inaudible) do you (inaudible) of the firearm you described as being a sawn-off firearm?' Answer, 'I described it as a sawn-off air rifle.'

Question, 'You said in your statement, in your witness statement, and we can go to it if need be, but you said this, that he had - you think it was a sawn-off air rifle.' Answer, 'Yes, correct.'

Question, 'By that (inaudible) was a sawn-off air rifle, but you weren't entirely sure?' Answer, 'I wasn't entirely sure because it was dark, and they were being waved around all the time.'

Question, 'Right. So what about the fact that it was sawn-off (inaudible) recollection specifically?' Answer, 'Well, it was (indistinct) it was sawn-off to the - um, to the stock, so the barrel wasn't extended past the stock.'

Question, 'I'm not sure (inaudible) understand (inaudible) answer (inaudible)' Question, '(inaudible) firearm you said was sawn-off that you observed?' Answer, 'The - the barrel.'

Question, 'All right. So.' Answer, 'The barrel had been shortened.'

Question, 'All right. The barrel had been shortened. But that was the only part of the firearm that had been shortened that you observed?' Answer, 'Er, the - the stock may (inaudible) been sawn-off. I can't recall. It was hard to tell.'

Question, 'Whether or not it was an air rifle or not, you say now you're not quite sure; is that fair to say?' Answer, 'Oh, I'm sure it was some sort of gun.'

Question, 'Yes. My question was whether it was an air rifle or not. You agree with me, do you, that you're not entirely sure about that?' Answer, 'I'm not entirely sure about that.'

Admissibility of the guns and balaclavas - ground 3

120 Prior to the jury being empanelled, the applicant's counsel submitted that the evidence of the finding of the two guns ought to be excluded. He submitted that there was no evidence linking the guns to the armed robbery. In doing so, he drew attention to the fact that the guns located by police - in particular, the gun referred to as the 'handgun' or 'pistol' - did not fit the description given by the victims to police. Evidence of their finding had no probative value, or, at least, any probative value that the evidence had was outweighed by its prejudicial effect.[36] Counsel took the judge to various descriptions of the handgun given by different witnesses at the committal, in order to demonstrate that they do not match the qualities of the handgun found by police.

121 The trial judge did not make a formal ruling. It would seem, however, that the judge thought the evidence to be admissible as part of the prosecution's circumstantial case. His Honour's reasons for refusing counsel's application may, I think, be gleaned from the following exchanges:

[COUNSEL]: In my submission, Your Honour, the handgun on the evidence of all witnesses, they almost invariably describe it as - in fact, in my submission they do invariably describe it as a black or dark-coloured handgun. Not a revolver, probably a 9 millimetre type weapon. The weapon that I've inspected is certainly at least of that type, in the sense that it's a small like magazine-style handgun, not a revolver. However, it is quite light-coloured, if I can put it - I think it's sometimes referred to as nickel plated. My observations of that particular weapon was that it had like a metal or metallic type of barrel to it. It's got a black handle, but the part of the gun that all witnesses make reference to seeing is the top barrel area of this particular weapon, and in my submission it could not in that context be described as dark-coloured. Furthermore, it's really quite a metallic colour of gun. ...

HIS HONOUR: Can you take me to the descriptions?

[COUNSEL]: Yes, Your Honour. Perhaps if I just go to the witness statements first. There is first the description offered by James Frangos. ... There's reference to the handgun ... Towards the end of the second paragraph it says simply, 'He was holding what looked like a 9 millimetre pistol finished in satin black'. We go on to the statement of Dianne Frangos ... She gives very little description of the handgun when called upon or when cross-examined at the committal hearing. ... She says, 'They were in black, the guns were black'. She's referring to both weapons at that point.

...

[COUNSEL]: Yes, Your Honour. However in my submission the fact that my client's DNA and indeed no forensic evidence linking my client to that particular handgun basically puts it - it places it in a class - and again this handgun was not located until about two and a half months later on 22 February, I think - to in my submission not give it such weight or such probative value in the prosecution of my client, to make it admissible.

HIS HONOUR: What, the evidence of the handgun you're talking about?

[COUNSEL]: Yes.

HIS HONOUR: The nine millimetre or whatever it was.

[COUNSEL]: Yes.

HIS HONOUR: Where was it found?

[COUNSEL]: Your Honour, it was found at the address of one of the co-accused, Kerry Murrell.

HIS HONOUR: Where was the other gun found?

[COUNSEL]: Same place, they were put together.

HIS HONOUR: That's the end of your argument, isn't it? Two of them found at the same location.

[COUNSEL]: Yes. But two and a half months later again, Your Honour.

HIS HONOUR: Doesn't matter. It's some circumstantial evidence. It's obviously [sic. obvious] if it had been found within two hours it would have been much stronger.

[COUNSEL]: Yes.

HIS HONOUR: There were two guns found at the same location, one of the guns has your client's DNA on it.

[COUNSEL]: Yes.

HIS HONOUR: I should have thought the combination of the two, particularly if the two guns had even some resemblance to the descriptions given by the witnesses, would be - certainly give it probative value. So what's the prejudicial effect that is said to outweigh the probative value?

[COUNSEL]: Your Honour, in my submission, Your Honour, it's simply the fact that my client's - well, evidence linking my client, that is the DNA, is found on something that is in itself an illegal weapon. As I understand, this gun is unregistered.

HIS HONOUR: Well, that pales into insignificance though, doesn't it, compared to the armed robbery charge?

[COUNSEL]: It does, Your Honour, but it essentially still has an incriminating, if you like, prejudicial effect. It simply indicates that my client is perhaps a person with a preparedness to handle firearms.

122 Thus, so it seems to me, despite the handgun located by police not matching the descriptions of the witnesses to be found in their statements and depositions, the trial judge thought that the 'combination of the two' guns - one with the applicant's DNA on it - was sufficient to render the evidence admissible. He thought that the evidence would have some probative value 'particularly if the two guns had even some resemblance to the descriptions given by the witnesses'. Of course, the guns had 'some resemblance' in the sense that there were two guns, and one of the two was a pistol. So far as the handgun is concerned, however, that is where the resemblance ended. I should add that the course that the trial judge took in dealing with counsel's submissions meant that he was neither referred to, nor ostensibly had regard to, any of the evidence given at committal concerning the other firearm.[37]

123 As I have observed, the applicant's DNA was found on one of four balaclavas found at the applicant's property, and on one of the two guns - the sawn-off air rifle - at Kerry Murrell's premises. A remarkable feature of the prosecution's case, however, was that there was no attempt whatsoever to have the victims identify any of the items as being the same as, or similar to, those having been worn or held by the robbers. There does not appear to have been any attempt by police in the course of their investigation to conduct, in effect, an identity parade of balaclavas or guns - or, at any rate, there was no evidence that the police had attempted any such thing - and, although the items became exhibits in the trial, the prosecutor did not show them to the witnesses James, Dianne or Melia Frangos, in an endeavour to elicit that they were the same as, or similar to, the balaclavas and guns possessed by their attackers. I pause to discuss this curious aspect.

124 It is common for investigators to provide an array of items to witnesses to see whether they are able to select an item as being the same, or similar to, an item used in the course of a crime. Callaghan[38] was such a case. During the course of an armed robbery on a bank, security footage captured two robbers - disguised with balaclavas and wearing gloves - one of whom was carrying a black 'butt-loading' pistol, and the other a silver 'ivory handled' revolver. Shortly after the robbery, the applicant was seen to hand a bag to a woman. During the course of a search of the woman's flat, police located the bag. In the bag police found an ivory handled Colt .357 revolver, a Luger pistol (butt-loaded), four balaclavas and two pairs of gloves. The applicant's DNA was on one of the balaclavas. At trial, a police firearms expert described the Colt as similar to one of the guns shown in the bank security footage. In the course of their investigation, police presented various witnesses to the robbery with an array of guns, which included the Colt and the Luger.[39] The effect of their evidence was that one or other of the guns bore some similarity to those carried by the robbers. In rejecting the notion that the evidence of the witnesses was inadmissible, Winneke P described the common practice:[40]

Nor am I persuaded that the judge was in error in the exercise of his discretion not to exclude the evidence of [the witnesses] of 'gun identification'. It frequently happens in cases like this, when armed robbers have heavily disguised themselves, that persons present at the crime will be asked to look at items of apparel or equipment for the purposes of expressing a view whether a particular item is similar to one seen at the crime. Sometimes it is done in court (as Tadgell J alluded to in R v Theos[41]); sometimes it is done out of court at a time when the incident is fresh in the mind of the witness. Not infrequently, witnesses are shown books of photographs (e.g. of cars) and asked to say whether they can recognise any particular vehicle or other item they saw at the crime scene.[42] None of these propositions, as I understand it, were disputed either at trial or in this court. What was put to the trial judge, and repeated in this court, was that the 'array of guns' presented to the witnesses was insufficient to enable a 'fair choice to be made by a particular witness. In essence, it was put that, having regard to the descriptions given by the witnesses of the guns which they saw at the crime scene, they were effectively being given a 'choice of one. ... In my view, the exercise of the judge's discretion to admit this evidence cannot sensibly be challenged. Indeed it was not strenuously argued before us that it could. It was not suggested that the police had deliberately set out to 'get an answer which they wanted'. The evidence was that the 'array of guns' was 'set up' by their own independent expert. The fact that the witnesses, in the absence of prior familiarity with guns, were able to select so quickly the guns which they did merely heightened, as the judge said, the probative value of the evidence. ...

125 Winneke P described the common practice of showing apparel, guns or other objects to witnesses, in order to have the witnesses identify the object as being the same as, or similar to, an object or thing that they observed in the course of a crime.[43] Sometimes the object or thing itself is shown to a witness by investigators as part of an array, and sometimes photographs are shown. At other times, witnesses are shown an object in court. Remarkably, as I have said, there was, so far as I can see, no attempt by the prosecution to show the sawn-off rifle, the handgun or the balaclavas to the witnesses in court - whether or not they had been shown them previously - and have the witnesses identify them. As has been made clear by the High Court, such a course is not objectionable. Heydon J (with whom Kirby J and Crennan J agreed) made so much clear in Evans,[44] when he described an objection to the practice - based on an analogy with dock identification - as 'not sound'.[45]

126 Evans was a case involving an armed robbery which occurred in February 2002. The robber was caught on security footage. He wore overalls, a balaclava, sunglasses and a baseball cap. (The baseball cap was left at the scene. DNA on the baseball cap was later shown to be a match for the appellant's.) Nearly two years after the robbery, in December 2003, a police search of the applicant's house revealed overalls and a balaclava. Witnesses at trial described the balaclava, Exhibit MFI1, and the overalls, Exhibit MFI2, as being similar to those worn by the robber. With respect to this evidence, Gleeson CJ and Gummow J said:[46]

... Trial counsel for the appellant submitted that evidence should not be received of the police finding at the appellant's house the balaclava and overalls that had been shown to the witnesses or of their finding a box of similar balaclavas. It was submitted that the evidence lacked probative value and that its reception would be prejudicial.

In this Court the appellant submitted that the items that had been produced at the trial were not then said or shown to have been worn by the robber. They were mass produced items. (The statement in the grounds of appeal that the items had 'been randomly seized' is to be understood as implying that the balaclava tendered in evidence was not different in any relevant way from the others found at the house.) The appellant submitted that the Court of Criminal Appeal should have held that 'the procedure adopted [in showing the items to witnesses and asking for their comments] was unfairly prejudicial'.

The short answer to the point is that the procedure followed at trial was not unfair. It may be accepted that the witnesses did not assert that what they were shown was what the robber had worn. The highest point this aspect of the evidence reached was that the items were similar to those the robber had worn. But there was no unfairness to the appellant in proving, as the prosecution did, that he had access to items of clothing like those worn by the robber. There were two steps in that proof. First, it was necessary to show that the items in question had been found at the appellant's house. Secondly, it was necessary to demonstrate how similar the items discovered were to those that had been worn by the robber. That second step required the eye witnesses to examine what had been seized and say whether and how the items were like those the robber had worn. Further, in the forensic setting of this trial, where the DNA evidence relating to the cap that had been found at the scene loomed so large, it may be thought that the finding of not just one balaclava but a whole box of them at the appellant's house, and the finding there of an otherwise unremarkable pair of mass produced overalls was not very damaging to the appellant. ...

127 Heydon J (with whom, as I have said, Kirby J and Crennan J agreed), having said that an analogy to dock identification was not sound, observed of the evidence:[47]

... A witness who is invited to identify the offender is under considerable pressure not to select anyone but the person sitting in the dock: to do otherwise is to risk looking foolish. The witnesses in the trial of the accused were not under pressure to say anything about MFI1. The questions of prosecution counsel lacked any leading character. Taken as a whole, the seven eyewitnesses revealed a variety of recollected perceptions and a variety of capacities for testimonial expression, strongly suggestive of bona fide attempts to say what they could recollect about a frightening series of events which took place unexpectedly over a very short time more than two years earlier. The lack of uniformity in their evidence about MFI1 is a sign that they felt no pressure to give one particular set of answers. There might have been pressure of that kind if prosecution counsel had employed leading questions in relation to MFI1 an error into which it is easy to fall when witnesses are questioned about chattels present in court. But counsel avoided that trap. The Court of Criminal Appeal correctly concluded that the eyewitnesses were not led into giving evidence which did not reflect their recollections.[48]

Once these considerations are put aside, there is no unfair prejudice. The more the evidence of the eyewitnesses convincingly revealed similarities between what they described in MFI1, the more that evidence 'prejudiced' the accused. The less it revealed similarities, the less it 'prejudiced' the accused - indeed it benefited him. But this 'prejudice' was not distinguishable from the probative value of the evidence; it is not prejudice as that term is used in s 137 [of the Evidence Act], and is certainly not unfair prejudice. 'Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted'.[49] Since the witnesses had provided descriptions of the offender very soon after the crimes, and these were available to defence counsel, it was possible for him to cross-examine them effectively on any departures from these statements, as he did. ...

For the same reason neither MFI1 nor the questions about it were 'unfairly prejudicial' within the meaning of s 135. Nor were they 'misleading or confusing'. Nor did they 'cause or result in undue waste of time': they comprised a small fraction of the evidence as a whole. Hence the trial judge's failure to exercise her discretion under s 135 to exclude the evidence has not been shown to be wrong.

128 In light of the common practice of the prosecution having witnesses identify inanimate objects - including firearms and items of clothing - as being the same, or similar to, those used in a particular crime, it seems odd (and somewhat puzzling) that the victims in this case were not asked to view the two firearms and the balaclavas in order to say whether they were the same or similar to those possessed by their attackers. I return to the evidence that was led.

129 Making due allowance for the circumstances in which he made his observations, James Frangos said that the sawn-off firearm was a 'shotgun', 'probably a 12 gauge'. Even to the untutored eye, it might be thought that there is a marked difference in the appearance of a sawn-off air rifle and a sawn-off 12 gauge shotgun, but Mr Frangos was not untutored - he knew the difference between a shotgun and a rifle. Further, although not much might turn on the fact that the pistol found at Kerry Murrell's residence was a .22 calibre weapon as opposed to a 9mm pistol as described by Mr Frangos, the unassailable fact is that the pistol is silver-coloured, not black. Such evidence as there was from Mr Scanlon (now deceased) was equivocal. At committal, he said he was 'not entirely sure' that the sawn-off firearm was an air rifle. No description from him of the handgun was introduced.

130 Moreover, two of the balaclavas quite clearly display embroidery or brand patches. One of the balaclavas prominently displays an embroidered area in red, blue, white and yellow, with the letters 'CFMEU' and other words clearly visible. Another has a noticeable white or cream coloured patch on the front with the words 'Stoners Original' prominent in green lettering. None of the victims described balaclavas with these characteristics.

131 There was no dispute that an aggravated burglary had occurred at the Frangos home, and that the occupants had been subjected to armed robbery by four offenders engaged in a joint criminal enterprise. The principal fact in issue in the applicant's trial was whether he was one of the four. Thus, for the evidence of the finding of the guns and balaclavas to be relevant - and thus admissible[50] it needed to be capable of rationally affecting (directly or indirectly) the assessment of the probability of that fact.[51] Even if the evidence had some probative value, the judge was required to exclude it if its probative value was outweighed by the danger of unfair prejudice to the applicant.[52] Another way of putting it is that the balaclavas and guns needed, as a matter of logic, to show some connection to the events in the Frangos' home.

132 In Thompson and Wran,[53] the appellants were charged with breaking, entering and stealing. The charges related to two safes that had their doors blown off by the use of explosives. The only real issue was whether the crimes were the work of the prisoners. At trial, the Crown led evidence that the appellants had in their possession implements for opening or breaking into safes. Those implements included some not appropriate for use in the commission of the crimes with which they were charged. As part of the evidence to identify the prisoners with the crimes with which they were charged, however, the Crown proved that they had in their possession a collection of tools and implements, which was referred to as a 'kit', for the opening of safes by blowing, by drilling or by picking the locks. Expert evidence was led about the way in which various parts of the 'kit' could be used to open a safe. Barwick CJ and Menzies J (with whom McTiernan J agreed), did not think that 'evidence of the possession of tools for the commission of crime is admissible only when it appears that tools of that nature were used in carrying out the alleged crime', it being 'sufficient if such tools might have been so used'.[54] Importantly, their Honours continued:[55]

In all cases, however, where such evidence is admitted, it is to identify an accused person with the crime charged against him, and evidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature, is, in the absence of some special connexion, inadmissible because it does no more than prove criminal disposition.

If, therefore, the evidence of the possession of safebreaking tools here had stood alone, it would clearly have been inadmissible.

It is to be observed however, that, in a case such as this, when there is found in the possession of prisoners some implements which might have been used to commit the crimes charged and other implements which could not be put to that unlawful use, it is not always an easy matter to apply the principle which acknowledges the admissibility of evidence of the possession of tools of a burglar to identify the accused with the crimes charged. The principle of completeness might sometimes dictate that evidence should be admitted going beyond proving the possession of tools which might have been used to commit the crime in question. While recognizing this, however, we are satisfied that in this case, where a collection of tools was found, the detailed evidence of the use to which some of the tools, which, it is clear, were not used in the crime might be used by a thief to commit other crimes, was no more than evidence of a particular criminal propensity, i.e., the propensity to steal from safes, and of the means to indulge that propensity. This conclusion is reinforced by the use made of the evidence by the learned trial judge, who referred to the proof of the possession of the 'kit' as a whole as 'evidence of tell-tale articles' and as 'evidence of suspicious articles or 'suspicious instruments'. In this way, what was admissible as evidence of identity, if it were admissible at all, was given a wider and an unjustifiable significance. Of course, evidence which is admissible because it is relevant does not become inadmissible because it also tends to prove the criminal propensity of a prisoner, although a judge should, in a proper case, in the exercise of his discretion, reject such evidence if its prejudicial effect is out of all proportion to its probative value. Furthermore, when evidence is admitted which is relevant but which also shows criminal propensity, a judge should explain the limited use that can be made of that evidence. In this case, however, we have come to the conclusion that the admission in evidence of the tools which could not have been used to commit the crimes charged, and the admission of evidence of the suitability of those instruments for the commission of other crimes, did nothing to connect the prisoners with the crimes with which they were charged beyond telling the tale of their criminal propensity.

134 Thompson and Wran makes plain that the accused's possession of tools of crime is admissible against him or her only if possession of those tools connects the accused to the commission of the charged offence. If the tools might have been used in the commission of the offence charged, then - putting to one side discretionary exclusion - the evidence is admissible. If the tools could not have been used in the commission of the charged offence, then evidence of their possession is inadmissible, since such possession demonstrates no more than mere propensity. Of course, once evidence of possession of tools of crime is admitted into evidence, the trial judge is required to give adequate directions as to the use - and non-misuse - of the evidence.

135 Driscoll,[57] was, as is this case, directly concerned with an accused person's possession of an array of firearms. The applicant was convicted of murder. Evidence revealed that the deceased had been shot twice in the head. Nobody witnessed the killing, but there was evidence from which it could be inferred that the fatal shots were fired from a .22 machine pistol - recovered from the sea by an abalone diver - which had been owned by the applicant. He gave evidence that he had sold the machine pistol to another prior to the murder. More than a year after the murder, police searched the applicant's premises and found a .32 Browning automatic pistol, a .303 rifle, a sawn-off shotgun, a .22 machine pistol and some ammunition. The machine pistol was very similar to that used to commit the murder. Police also found photographs of two men, who were said to be criminals. Investigators said that the applicant admitted that all the weapons were his; and made statements demonstrating some knowledge of the murder and the fact that it had been committed with a weapon similar to the .22 machine pistol found in his possession. None of the evidence was objected to.

136 Gibbs J - with whom the other members of the Court (Barwick CJ, Mason, Jacobs and Murphy JJ) relevantly agreed - held that the evidence of the finding of the .22 machine pistol, and the statements made by the applicant with respect to it, was plainly admissible. At the time the applicant made the statements attributed to him, he did not know that police had recovered the murder weapon. His insistence that the machine pistol found in his possession was not the weapon used in the murder might have been regarded as very significant, since the jury might have inferred that the applicant knew what sort of weapon had been used in the murder and also that he believed that the weapon so used had been disposed of and was unlikely to be found.[58] His Honour held, however, that the finding of the other weapons in the applicant's possession was inadmissible. Gibbs J said:[59]

Those other weapons were not used in the crime charged and the fact that they had belonged to the applicant did not tend to show that he had committed the crime. The crucial issue in the case was one of identity: was the applicant the person who shot Maloney? No question of intention arose. The fact that the applicant had a number of weapons which were not used in the crime was not probative of the fact that he was the person who had committed the murder with which he was charged.

137 Gibbs J adverted to 'the principle of completeness' discussed in Thompson and Wran, and held that the principle did not justify the admission of the evidence of the finding of the other weapons or the finding of the photographs. He said:[60]

The evidence that other weapons and photographs were found at [the applicant's premises] does not throw any light on the admissible evidence which tends to connect the applicant with the crime charged, and is not so inextricably interwoven with the admissible evidence that the latter could not properly be presented if the former were excluded. The account by the police of the finding of the machine pistol at [his premises] would have been perfectly understandable if no mention had been made of the other weapons or of the photographs. The record of interview could easily have been 'edited', in accordance with the common and useful practice, by omitting the references to the weapons and photographs and the excision of these references would not have affected the sense of what remained or rendered it any the less intelligible. It was not difficult in the present case to sift the inadmissible from the admissible evidence, and to tender only the latter, and if this had been done the picture presented to the jury would not have been incomplete.

138 Festa[61] was another case that involved the finding of firearms. Brunetta Festa was convicted, together with a male, Marc Renton, of two counts of armed robbery and associated offences. The charges related to two bank robberies committed several weeks apart in the same area. Witnesses described the robbers as being a man and woman. The central issue in the trial being whether Ms Festa and Renton were that man and woman. Evidence suggested that the robbers donned disguises, and that the woman wore a wig. There was strong evidence that Renton was the male robber. The appellant, the evidence showed, associated with Renton during the period that the robberies were committed, and surveillance evidence showed her to be a frequent visitor to his unit. She had keys to Renton's apartment, and her fingerprints were found on tools of crime found inside it. A police search of Renton's apartment located guns, various types of ammunition, a sledge hammer, an instruction manual for a radio scanner, a can of hair and wig sheen, two wig stands, instructions on the use of disguises and a bottle of spirit gum remover. Two guns located - a .22 rifle with a distinctive curved magazine, and a shotgun - were similar to at least one of the weapons described as carried by the robbers during at least one of the robberies. Receipts showed, however, that two of the weapons found were purchased after the second robbery. Some of the ammunition was not capable of being fired by weapons discovered in the search, but was obviously referable to another firearm not located during the search.

139 The High Court (Gleeson CJ, Kirby and Callinan JJ; McHugh and Hayne JJ contra) held that the evidence of the finding of the firearms, which were similar to the weapons described as being used in the armed robberies, was relevant when viewed in conjunction with other evidence in the case, and was thus admissible. Kirby J (with whom Gleeson CJ agreed on this aspect)[62] held that the implements found in Renton's apartment were relevant not only to the 'criminal propensity' of the appellant and her co-accused, but they amounted to the 'tools of trade' of bank robbers apt for carrying out robberies 'linked by a particular and unusual modus operandi'. Thus, although the two weapons found in the premises purchased after the robberies - an assault rifle and shotgun - could not have been those used in the robberies, they were of the same character as the weapons carried by the offenders as described by witnesses.[63] Kirby J concluded:[64]

... In this case, the collection of items described was of the same character as those used in connection with the alleged offences. The items had to be viewed in relation to each other and to the crimes alleged in the indictment. So viewed, the evidence was specifically relevant. It was rightly admitted.

To like effect, Callinan J thought it significant 'that the weapons in this case were found with ammunition for them, instructions, wig stands and wig sheen, as well as a bottle of spirit remover bearing the appellant's fingerprints'.[65]

140 Both McHugh J[66] and Hayne J[67] were of the view that the evidence of the finding of the weapons was inadmissible (and that other errors had occurred), but that nonetheless there had been no substantial miscarriage of justice.[68]

141 The distinguishing feature of the finding of the firearms in Festa (particularly those that were not used in the robberies) is that they were part of a collection of the 'tools of trade', not just of armed robbers in general, but of armed robbers employing a particular modus operandi.

142 Crupi[69] concerned the armed robbery of supermarket takings from security guards. Each armed robber wore a balaclava and was armed. One held a revolver to a guard's head. The security guards' surrendered their revolvers to the robbers with the takings. A former police officer close to the scene described the 'shorter' of two armed robbers as wearing a distinctive shirt. (The prosecution alleged that the taller man was one 'Rich'.) The applicant was later found in a taxi in possession of a bag which contained a shirt identified as that worn by the shorter robber. In a locker in the boot of a taxi in which he was travelling with Rich within hours of the robbery, the two revolvers stolen from the security guards were found. There were also two loaded revolvers which matched the description given by bystanders of the revolvers carried by the robbers. Also found was an 'armed robbery kit', which contained black balaclavas, holsters with loaded firearms, scanners with earpieces (the scanners tuned to relevant frequencies), glasses, tools for car stealing, ammunition, plastic ties, mace spray, a torch, a sawn-off shotgun and items of disguise. Many of these items held the applicant's fingerprints. Having adverted to observations from Thompson and Wran which I have earlier referred to,[70] the Court (Crockett, Nathan and Vincent JJ) said of the 'armed robbery kit':[71]

These remarks, we think, demonstrate that the present case is distinguishable from that with which the High Court had to deal. The circumstances of the discovery of the 'robber's kit' strongly point to the identification of the applicant as one of the perpetrators of the armed robbery. The items were found in the blue locker. The locker was found in a taxi in which both men were travelling only a few hours after the armed robbery. Next to the blue locker was the bag which contained part of the proceeds of the robbery. One of the items was a scanner which was found to be tuned to police and Armaguard frequencies. The key to the locker was on Rich 's key ring. The locker also contained the two revolvers stolen at the time of the robbery. There were items which might have been used in the robbery, namely the two other loaded revolvers, the two pistols holsters, black balaclavas, gloves and the scanner.

Similarly, there were items which might have been used in the preparations for the carrying out of the crime. They were items for disguise and repair of disguises and items for stealing cars in the way the Econovan and the metallic blue Ford were stolen.

The applicant was linked to the locker by his fingerprints on documents inside the locker. Thus we think that the evidence was admissible against the applicant as tending to prove his identity as one of the robbers. This is so even if all the items could not be shown to be such that they might have been used in the crime. In the circumstances, the principle of completeness to which the High Court referred would justify the admission into evidence of proof of all the items being found in the context to which we have made reference.

143 Theos[72] involved a conviction for armed robbery of a bank. Two hooded men, each carrying a sawn-off shotgun (one single-barrelled, and the other double-barrelled), had perpetrated the robbery. Security cameras filmed the robbery, but the faces of the men were obscured by balaclavas. More than two years after the robbery, police executed a search warrant at the applicant's premises and located a sawn-off single barrelled shotgun in a bag behind a loose board in the basement. The prosecution claimed that the shotgun was the same weapon depicted in the bank security camera photographs. Of dubious admissibility, an associate of the applicants was permitted at trial to give evidence identifying the shotgun as one that he had seen the applicant cutting down with a hacksaw, and also identifying the applicant as one of the robbers.[73] A police firearms expert was also permitted to give evidence that the shotgun depicted in the security camera photographs was the same make as that found at the applicant's premises. Before the jury was empanelled, the defence, seeking exclusion of the evidence of the shotgun, called on the voir dire an expert on photogrammetry, Professor Gail Spring, whose evidence was designed to cast doubt on whether the shotgun shown in the security camera photographs was the same gun found in the applicant's possession. On appeal, it was claimed that the shotgun (Exhibit F), and the evidence identifying the shotgun, should have been excluded, and that the directions given by the trial judge to the jury as to identification of the shotgun were inadequate.

144 The appeal was allowed on the basis that the directions given concerning the evidence of identification of the shotgun were inadequate; but the admissibility of the shotgun was upheld. Tadgell JA said:[74]

Having adduced the evidence of the finding of the shotgun, its seizure and its characteristics, the Crown was entitled to invite the jury to conclude that the gun was used in the robbery. Such a conclusion would no doubt provide powerful evidence in corroboration of the other evidence of identification of the applicant. Alternatively, even if the jury were not prepared to conclude positively that the seized gun was used in the robbery, the evidence of its being found at the applicant's house, and being of exactly the same kind as that used in the robbery, could be added to the other circumstantial evidence of his involvement in the robbery. The argument for the Crown would then be the axiomatic one that, while no one piece of evidence, taken alone, might satisfy the jury beyond reasonable doubt of the applicant's guilt, the evidence in its totality, including that of the seized gun, could do so. ...

Southwell AJA agreed with Tadgell JA with one qualification, that being 'whether the jury was entitled to conclude positively that the gun found in the applicant's house was the gun used in the robbery'.[75] And Smith AJA said of the shotgun:[76]

In my view it was relevant as a piece of circumstantial evidence on the basis that evidence was led that it was found in the premises of the applicant, that he had had it in his possession at the time of the robbery, and that it was of a kind that was similar to that used in the robbery. At the trial it appears that the argument that was mounted to have the evidence ruled inadmissible was that the accused had evidence which demonstrated that the single barrel shotgun used in the bank's hold-up was longer than the exhibited weapon, Exhibit 'F'. This evidence was led from the expert, Mr Spring, on a voir dire before there was a final ruling in the matter. It was submitted at the trial that Exhibit F and the hold-up weapon were, therefore, different weapons and that the evidence should be excluded because at the most it established propensity only. The Crown relied on cases such as Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313 at 316 to argue that the gun that was found was a weapon which may have been used and was, therefore, admissible, evidence being led of it being found in the possession of the applicant and that he had had it in his possession for four or five years.

The argument advanced by the applicant below required the learned trial judge to consider whether the probative value of the evidence was outweighed by its prejudicial effect. Her Honour identified the probative value as arising from the circumstantial evidence on the basis of which it was open to the jury to find that it was a weapon that might have been used in the robbery. The prejudice, in my view, lay in the risk that the jury would infer that the applicant had a sawn off shot gun to use in serious criminal activity and was a dangerous criminal. I also interpret her Honour's reference to the need for an appropriate direction as a recognition of such potential prejudicial effect. Accepting, as I do, however, that it was open to her Honour to conclude that the prejudicial effect could be dealt with by appropriate direction, I am not persuaded that any error was made.

145 As I have previously observed,[77] Theos was discussed in Callaghan,[78] where evidence of the finding of guns identified as being similar to those used in an armed robbery was held to be admissible.[79]

146 In Debs[80] the applicant was convicted of the shooting murder of a young woman in 1997. The deceased had been shot with a .357 Magnum solid lead semi-wadcutter bullet with copper plating. In July 2000, police searched the applicant's mother's house. Buried underneath it they found a white plastic bucket which contained several firearms, one of which was a .357 Magnum calibre Smith & Wesson revolver (that is, a gun of the kind used to kill the victim). The revolver was said to be in near-new condition. Police also found a rifle and a number of other firearms at the bottom of a wall cavity at the house. Four years later, in June 2004, a number of .357 Magnum calibre, Winchester-brand, solid lead, semi-wadcutter cartridges with copper-plated bullets (that is, the same kind of bullet as that found near the victim) were found buried in the garden of the applicant's mother's house. These bullets could be fired from the revolver found under the house. Counsel for the applicant at trial submitted that the evidence relating to the finding of the Smith & Wesson revolver and the ammunition at the applicant's mother's house was inadmissible. It was submitted that it was evidence of mere propensity, since there was no evidence that the gun was the one that had fired the shot. Further, there was a temporal and geographical remoteness. Alternatively, counsel submitted that the prejudicial value of the evidence exceeded its probative value.

147 The Court (Vincent, Neave and Weinberg JJA) rejected the submission that the evidence of the finding of the Smith & Wesson revolver was inadmissible, observing that, 'Thompson and Wran and Theos both support the view that the evidence as to the finding of the Smith & Wesson revolver and the bullets was admissible as evidence that the applicant might have had access to a weapon and to bullets of the same kind as those used in the murder of the victim'.[81] With respect to the finding of the other guns, the Court was of the view that the location of the guns in the bucket alongside the Smith & Wesson was admissible, but that the finding of the guns in the wall cavity was not. The Court said:[82]

Some of the photographs were taken to show the location of the Smith & Wesson revolver in the place where it was found, and thus to link the finding of the gun with the telephone call in which the applicant said that there was 'stuff' under his mother's house. That could only be done by showing the Smith & Wesson revolver in situ, along with the other guns in the bucket.

In Driscoll, Gibbs J referred to 'the principle of completeness',[83] which may permit evidence not otherwise admissible to be led if it is necessary to enable a jury to understand what has occurred.[84] In our opinion, the evidence of the finding of the guns in the bucket alongside the Smith & Wesson revolver was admissible, on that basis. The finding of the other guns in the bucket hidden under the house was 'inextricably intermingled' with the evidence of the finding of the Smith & Wesson revolver hidden under the house.[85]

However, the admission of evidence as to the finding of the guns in the wall cavity cannot be justified on a similar basis. The Crown did not need to lead evidence on this matter, or to tender photographs showing the guns in the wall cavity. As in Driscoll, 'the excision of [those] references would not have affected the sense of what remained or rendered it any the less intelligible',[86] even though the telephone conversation between the applicant and his daughter did refer to the guns in the wall cavity. Such evidence was inadmissible because, like the safe-breaking kit in Thompson and Wran, it was evidence as to propensity only, and had no other relevance or probative value. The situation cannot be equated with that in Festa, because other guns had no relevance to the murder of the victim.[87]

In the particular circumstances of this case, however, we do not consider that the admission of this evidence led to any miscarriage of justice. ...

148 Cavkic[88] was a circumstantial case of murder against three accused. The victim was a solicitor, and the attributed motive was that discovery of theft by one of the accused, Clark, from the solicitor's trust account - he being a clerk in the solicitor's firm - was imminent. Shortly after the solicitor was last seen alive, one of the other accused, Athanasi, was intercepted by police seated in the solicitor's motor vehicle, and the third accused, Cavkic, was found in a parked motor vehicle nearby. At trial, evidence was received of lies told by Athanasi to police as to how he came to be in possession of the solicitor's vehicle. When arrested, Cavkic was found to be in possession of a pistol and a shoulder holster. At trial, a witness gave evidence that he had seen Cavkic with a pistol and holster at Athanasi's home a few weeks before he read in a newspaper that Cavkic had been found by police in a motor vehicle with a gun. The witness, Strinavic, gave evidence that the pistol and holster he had seen resembled the pistol and holster later found in Cavkic's possession. Strinavic's account was relied upon as evidence of the circumstance that, some weeks before Cavkic's arrest, Athanasi had been seen in the presence of Cavkic with a weapon and a holster which looked like the weapon and holster later found in Cavkic's possession. Since the possession of automatic pistols and holsters is rare in the civilian population, that was a circumstance which suggested that the weapon and holster later found in Cavkic's possession were those which Strinavic had seen in Athanasi's possession in his garage. Counsel submitted that the evidence was tenuous, and that the probative value of the evidence was outweighed by its prejudicial effect. The Court (Vincent and Nettle JJA, and Vickery AJA) held that the evidence was admissible as part of the circumstantial case,[89] and rejected the notion that the probative value of the evidence was outweighed by its prejudicial effect.[90]

149 Finally, I should mention Clune.[91] The applicant was convicted of the armed robbery of a bank (and associated offences). There were four robbers, each of whom wore wigs, false moustaches and dark glasses. The prosecution's case was circumstantial. It had three limbs. First, there were several witnesses who identified a photo of the applicant as bearing a similarity to one of the robbers. Secondly, there was some evidence of betterment. Thirdly, guns and other implements of crime were found in a tool box and storage bin, and in other premises, to which the applicant had access. The judge directed the jury that the evidence of betterment by itself could not sustain a verdict of guilty, and that 'the evidence of possession of the guns and so forth could not by itself sustain a verdict of guilty'. Further, the judge directed that the evidence of betterment in combination with the evidence of possession of the guns could not found a guilty verdict. The judge also directed that 'the evidence of similarity by itself could not sustain a verdict of guilty'. But the judge directed, however, that the evidence of similarity together with the evidence of betterment could ... sustain a verdict of guilty, as could a combination of the evidence of similarity and a combination of the evidence of the possession of the guns and so forth'.[92] Callaway JA (with whom Winneke P and Crocket AJA agreed) held that it was not open to the jury to convict on the evidence. Having referred to authority, including Pitkin,[93] he said:

It is clear that the jury in the present case could have regarded the evidence of identification as amounting to no more than evidence of similarity. They might not have appreciated how little such evidence proves or appreciated that several witnesses to similarity are no more probative than one, except to show that the accused resembles the offender. ...

His Honour directed the jury with emphasis that they could not convict on the evidence of betterment or the evidence of possession of incriminating articles, either alone or in combination. In addition to the passage that I have quoted, his Honour twice said that such a conviction would be based on the fallacy that 'zero plus zero' equals more than zero. If they had taken that metaphor literally, the jury would have been puzzled by a direction that 'the evidence of betterment, and/or the evidence of possession of guns and so forth, may be used ... to negative the possibility of mistaken identity'. Evidence of zero probative value could not be used for any purpose at all, but the 'zero plus zero' metaphor was no more than that. It meant only that the evidence of betterment and the evidence of possession of incriminating articles, even in combination, had such low probative value that, on their own, they would have to be disregarded altogether. The jury would nevertheless have been left with the impression that the evidence of similarity was fundamental: they could not convict on the Crown's alternative argument except on the basis of that evidence, supported by one or other or both of two other pieces of evidence that they had been told were of very low probative value indeed. As his Honour said, 'Really, the case gets back one way and another to visual identification.'

It follows that the jury were invited to convict on a basis that was not open to them. Indeed, if they convicted the applicant on a combination of witnesses to similarity and the betterment evidence, the position is indistinguishable from Pitkin's case. Those witnesses could prove no more than the fact that the applicant looks like one of the bandits. The betterment evidence, in contrast with the evidence of possession of incriminating articles, was quite insubstantial. For practical purposes it was equivalent to the absence of other evidence in Pitkin's case. Striking though the evidence of possession of incriminating articles was, it was not inevitable that the applicant would be convicted.

150 Each of the cases to which I have referred, where the evidence of an accused's possession of firearms or other implements of crime has been held to be admissible, share a common feature. In each of those cases, the finding of the firearm (or other tools of crime) has been part of a circumstantial case. In other words, the possession of the firearm (or other thing) has been one piece of evidence - usually one strand in a cable - tendered in support of other pieces of evidence in the prosecution's circumstantial case. The evidence has generally been held to be admissible, not because it can be established that the firearm (or thing) was used in the commission of a particular crime, but because it could have been so used. Those cases where the evidence of the possession of a firearm has been held to be inadmissible are cases where the firearm or other thing could not have been used in the commission of the charged offence. Where the firearm or thing could not have been used in the commission of the crime charged, the evidence is inadmissible as bearing on no more than mere propensity.

151 The present case has some parallels to Festa, in that the firearms were not in the applicant's direct physical possession, but were found at the premises of another with whom he had an association. (He, of course, had possession of balaclavas.) Like Festa, his DNA arguably linked him to a firearm,[94] in the same way that Festa's fingerprints linked her to an item found amongst the several items making up the robbers' kit (including the firearms). Unlike Festa, there was no evidence that the applicant frequently visited the premises where any robbers' kit was located, or had frequent contact with the person whose premises housed the incriminating articles.

152 What sets the present case apart from those authorities to which I have had recourse, however, is that the evidence of James Frangos strongly suggested that the firearms found at Kerry Murrell's place, one of which - the air rifle - produced a mixture of DNA from the fore-grip, were not the firearms used in the aggravated burglary and robbery. He knew something of firearms. He described the sawn-off weapon as a shotgun, probably a 12 gauge. He also described the pistol he saw as a 9mm, black in colour, whereas the pistol found with the air rifle was a .22 weapon, silver in colour. Even making due allowance for the circumstances in which he made his observations, and for the fact that a jury might theoretically ignore his evidence on these points as being mistaken, in my view it would be capricious to

reject his evidence of the descriptions of the guns he observed.[95] This is all the more so, it seems to me, when - so far as I can see - there was no attempt by the prosecution whatsoever to have the victims identify the firearms. That failure was a curious feature of this case.

153 Apart from the evidence of James Frangos, the only other evidence describing the firearms used by the robbers was that of Mr Scanlon given at committal. His evidence contained no description of the handgun, however, so that the sole evidence concerning that firearm was that of Mr Frangos. The handgun he described was 'small, blue, metal', 'black' and metallic. That description simply does not match the physical characteristics of the .22 pistol located. Further, the evidence of Mr Scanlon was that he was 'not entirely sure' that the other gun was a sawn-off air rifle. So far as I can see, the evidence led at trial does not disclose that there was ever any attempt to have Timothy Scanlon identify the air rifle found at Kerry Murrell's residence as being the same, or similar to, the sawn-off firearm that he had observed. By comparison, on my reading of his evidence, James Frangos, who had some familiarity with firearms, and knew the difference between a rifle and a shotgun, was unequivocal in saying that the sawn-off weapon was a 'shotgun'. When pressed in cross-examination, he added that it was 'probably a 12 gauge'.

154 Thus, so it seems to me, the state of the evidence is that no description of the handgun given by the witnesses matches the handgun that was found, save to say that it is a small, magazine loading pistol. Further, the description of the sawn-off firearm given by Mr Frangos is at odds with the equivocal evidence of Mr Scanlon. Thus, although there were two guns used in the aggravated burglary and armed robberies, and there were two guns found at Kerry Murrell's place, the state of the evidence did not leave it open to conclude that they could have been the guns used. The coincidence of there having been two guns used in the offences, and there having been two guns found, however, is highly seductive. Indeed, its seductive nature may be gauged from the trial judge's comments[96] that 'the combination of the two, particularly if the two guns had even some resemblance to the descriptions given by the witnesses ... certainly give it probative value'; and that that, 'Two of them found at the same location' meant that was the 'end' of the 'argument'. Had his Honour been taken through a little more of the detail of the evidence, and had he sought to deliver a formal ruling, he might not have admitted the evidence. But once the evidence had been led at the trial, it should have been seen to be inadmissible. The highly seductive nature of the evidence meant that, although when properly analysed it had little or no probative value, it was substantially prejudicial.

155 In my opinion, the evidence of the finding of the guns at Kerry Murrell's place did little (if anything) to connect the applicant to the charged offences. To suggest that the two guns could have been used in the commission of the offences is highly speculative, and, indeed, at odds with the best evidence in the prosecution's case identifying the firearms used in the commission of the offences (that of James Frangos). The applicant's DNA on the fore-grip of the air rifle could not connect him to the offences unless the gun itself could in some legitimate way be connected to the offences. It could not be. The evidence was inadmissible. It established nothing but, at best, mere propensity. A substantial miscarriage of justice resulted from its reception.

156 If, contrary to my view, the evidence of the finding of the firearms has some probative value, given the evidence of Mr Frangos, any probative value it has is outweighed by the danger of unfair prejudice. It would be speculative to say that the firearms were the same as those used in the offences, but a short leap for the jury to reason from his possession of one of the guns - assuming for present purposes the mere fact of his DNA on the air rifle could justify such a finding - that the applicant was the kind of person likely to have committed the offence charged.

157 Although, perhaps, in a slightly different category, the prosecution made no attempt to have the relevant witnesses at trial identify the balaclavas found in the applicant's possession as being similar to those worn by the offenders. As I have said, although the number found (four) corresponds to the number worn by the offenders, and although they were similar to those worn during the offences in that they were dark, there were distinctive features attaching to at least two of the balaclavas that were not described by the victims. I need not finally resolve the admissibility of the balaclava evidence, however, since, as I have said, I am of the view that the evidence of the finding of the firearms should not have been admitted and the convictions should not be permitted to stand.

158 Before leaving this ground, I note that in their written cases neither counsel for the applicant nor counsel for the respondent cited any of the authorities relevant to the resolution of the present ground. It would have been helpful had they done so.

Failure to direct on the conversation at Stacey Watson's home - ground 4

159 It should not be thought that the essential duties of a trial judge in a criminal trial have changed with the introduction of the Jury Directions Act 2013 ('the Act'). Those duties were summarised in AJS,[97] where the Court (Maxwell P, Nettle JA and Redlich AJA) said:[98]

Axiomatically, it is the responsibility of the trial judge in every jury trial:

(a) to decide what are the real issues in the case;

(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;

(c) to tell the jury, in the light of the law, what those issues are;

(d) to explain to the jury how the law applies to the facts of the case; and

(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.

These propositions are of long-standing and of high authority. They have often been repeated in this court.[99] If adhered to, they should serve to simplify, rather than complicate, the task of the trial judge. Adherence to them is, of course, essential if the jury is to be adequately equipped for its task.

160 Although the purposes of the Act include the reduction of the complexity of jury directions in criminal trials; the simplification and clarification of the duties of the trial judge in giving jury directions in criminal trials; and the assistance of trial judges to give jury directions in a manner that is as clear, brief, simple and comprehensible as possible; nonetheless the Act makes clear that the judge is required to expose for the jury's consideration the issues in the trial, albeit that the Act identifies its purpose in that respect as 'to simplify and clarify the issues that juries must determine in criminal trials'.[100] So much is given emphasis by s 17 and s 18 of the Act, which make clear that a trial judge is required to explain so much of the law, and identify so much of the evidence, as is necessary for the jury to determine the issues in the trial. They provide:[101]

In his or her summing up to the jury, the trial judge -

(a) must explain only so much of the law as is necessary for the jury to determine the issues in the trial; and

(b) must refer the jury to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial but need not summarise the closing addresses of the prosecution and the accused; and

(c) need not give a summary of the evidence but, in accordance with section 18, must identify so much of the evidence as the trial judge considers necessary to assist the jury to determine the issues in the trial; and

(d) may use a combination of oral and written components.

1. Trial judge required to identify only evidence necessary for determination of issues

(1) The trial judge is required to identify only so much of the evidence given in the trial as the trial judge considers necessary to assist the jury to determine the issues in the trial.

(2) In determining whether and if so to what extent identification of evidence is necessary under subsection (1), the trial judge must have regard to -

(a) the facts in issue; and

(b) the complexity of the facts in issue; and

(c) the length of the trial; and

(d) the complexity of the evidence; and

(e) the submissions and addresses of the prosecution and the accused; and

(f) any reference to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial; and

(g) any special needs or disadvantages of the jury in understanding or recalling the evidence; and

(h) any transcript of the evidence in the trial or any other document provided to assist the jury to understand the evidence.

161 Moreover, the Act makes plain that the overriding duty of a trial judge is to give any direction necessary to avoid a substantial miscarriage of justice.

162 There was one principal issue in this case - was the applicant one of the four offenders who were acting together as part of a joint criminal enterprise? The prosecution relied on a circumstantial case to establish that principal issue. There were what counsel at trial called four 'pillars' making up that circumstantial case - first, the conversation at Stacey Watson's home; secondly, the finding of the laptop computer at the applicant's property; thirdly, the finding of four balaclavas at the applicant's property, one of which held his DNA; and, fourthly, the finding of the sawn-off rifle with the applicant's DNA on the fore-grip, and the .22 pistol, in a backpack at Kerry Murrell's home.

163 Thus, in my view, the judge was required to identify the evidence which bore on the prosecution's circumstantial case, and give the jury adequate directions as to how that evidence bore on the determination of the principal issue. He did not do so.

164 The judge told the jury that the prosecution case was circumstantial (although, curiously, he did not use the usual 'strands in a cable' or 'links in a chain' analogies, the present clearly being a case of 'strands in a cable'[102]), and he gave directions about the drawing of inferences. At one point, he reminded the jury of the finding of the laptop computer, told the jury it was a part of the prosecution's circumstantial case and referred to the submissions of counsel. The judge also gave directions on expert evidence relevant to the DNA evidence, referred to the DNA on the gun as 'only part of the circumstantial evidence ... part of the pillars in the prosecution case', and instructed the jury that the DNA on each of the gun and balaclava does not of itself prove the applicant's participation in a joint criminal enterprise. His Honour also gave directions on joint criminal enterprise, although, beyond reminding the jury that 'cash, and a number of other items including a laptop computer ... was stolen', he referred to none of the evidence. Indeed, beyond referring to the DNA evidence on the context of directions on expert evidence, and the finding of the laptop computer, his Honour made no attempt to identify any of the crucial evidence bearing on the principal issue in the trial. Apart from what I have already adverted to, the judge's only allusion to the evidence was oblique, when he referred to the main issue and the addresses of counsel:

[T]he real contest is here; did the accused knowingly participate in the events of that evening, 4 December 2010, at the home of the Frangos'? Was he one of the four people that went into that premises on that day? And had he been there, was he there as part of that joint criminal venture which the prosecution rely upon in proving his case? And I remind you the defence do not dispute that those persons who did engage in that series of events were guilty of the crimes that are alleged, namely aggravated burglary and armed robbery.

All right, well that really is close to completing what I need to say to you, ladies and gentlemen, about the law in this case. You have heard two addresses from counsel and you will have listened carefully to them_. I am not going to say any more about the facts in the case. You have to consider carefully the arguments that were raised on both sides. And, ultimately, you have to reach your own conclusions about the facts in the case_.

165 The judge was required to do more. He needed to draw the jury's attention to the discrete evidence which bore on the main issue raised for determination, and make it plain that none of the pieces of evidence alone could establish the prosecution case. He needed to instruct the jury that the applicant's participation in the conversation at Stacey Watson's home could do no more than establish that he was aware of the Frangos family, their business, their reputed wealth and the possibility of them being targets of criminal activity. He needed to instruct the jury that participation in the conversation was not an admission, express or implied. He needed to tell the jury that the finding of the laptop could not alone establish the applicant's participation in the aggravated burglary and armed robbery, and, as part of that direction, alert the jury to other possibilities for his possession of that item other than being part of the joint criminal enterprise alleged. He needed to tell the jury that possession of the balaclavas alone could not establish participation in the charged crimes, and that, before the jury could use the evidence at all, the jury needed to be satisfied that, at the very least, the balaclavas could have been those worn by the offenders. And he needed to direct the jury that the finding of the guns alone could not establish that the applicant was part of the joint criminal enterprise, and that, before the jury could use the evidence at all, the jury needed to be satisfied that, at the very least, the firearms could have been those carried by the offenders.

166 That said, the added ground, ground 4, complains that the trial miscarried because the trial judge 'failed to direct the jury that, before they could use the evidence of the witness Stacey Watson against the applicant, they would have to be satisfied that the applicant was present at, and a participant in, the conversation at her home on 2 or 3 December 2010 between herself and Kerry and Lloyd Murrell regarding the Frangos family'. So much is true. But the undeniable effect of the evidence is that he was present, and did participate in the conversation. More important was the judge's failure to direct the jury as to the use, and non-misuse, of the evidence. This was not, however, a matter agitated by counsel under cover of this ground.

Unsafe and unsatisfactory verdict - ground 1

168 Once it is understood that the evidence of the possession of the guns and the balaclavas should not have been admitted, there is nothing left in the prosecution case that would permit a jury to be satisfied to the criminal standard that the applicant was part of the joint criminal enterprise that involved the aggravated burglary and armed robbery. Presence at, and participation in, the conversation at Stacey Watson's home proved nothing other than that James and Dianne Frangos were identified as targets of possible criminal activity. Moreover, the applicant's possession of Mr Scanlon's laptop computer ten weeks or thereabouts after the offences is insufficient to show that the applicant was a robber as opposed to, say, a receiver of stolen property. Moreover, the two together would not justify the applicant's conviction. Putting to one side whether the DNA evidence could have justified a finding that the applicant had touched the firearm,[103] since it could not be connected to the charged offences, it had no legal relevance.

169 The verdicts are unsafe and unsatisfactory. It simply was not open to the jury to convict the applicant.

170 In light of the foregoing, the application for leave to appeal against conviction should be granted and the appeal allowed. A judgment of acquittal should be entered.

[1] Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 ('Chamberlain'); Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573; R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 637-9.

[2] Chamberlain [1984] HCA 7; (1984) 153 CLR 521, 535.

[3] [1952] HCA 3; (1952) 85 CLR 437, 466.

[4] R v Anderson [1996] VICSC 17; [1996] 2 VR 663, 666-7 (Winneke P, Brooking JA and Southwell AJA concurring); R v Frank [1998] VSCA 100; [1999] 1 VR 518, 524 (Winneke P, Tadgell and Batt JJA concurring); R v Dao [2005] VSCA 196; (2005) 156 A Crim R 459, 464-5 (Buchanan, Vincent JJA and Byrne AJA); R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408, 410-11 (Ormiston JA), 416-17 (Charles JA).

[6] [2005] VSCA 288; [2005] 12 VR 563, 577-8 (Maxwell P, Nettle JA and Redlich AJA).

[7] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 637 (Gaudron ACJ, Gummow, Kirby, Hayne JJ); R v Defrutos [1998] 2 VR 589, 597-8 (Callaway JA); R v Anderson [1996] VICSC 17; (1996) 2 VR 663, 666-7 (Winneke P, Brooking JA and Southwell AJA concurring).

[8] R v AJS [2005] VSCA 288; [2005] 12 VR 563, 577 (Maxwell P, Nettle and Redlich JJA).

[9] R v Yusuf [2005] VSCA 69; (2005) 11 VR 492, 501-2 (Winneke P, Charles JA and Chernov JA agreeing); R v Thompson [2008] VSCA 144; (2008) 21 VR 135, 163 (Redlich JA).

[10] [2002] VSCA 158; (2002) 5 VR 408, 410.

[11] Victorian Law Reform Commission, Jury Directions, Final Report No 17 (2009) Chapter 5.

[14] [2009] VSCA 30.

[15] Ibid [37] (Maxwell P, Vincent and Neave JJA).

[16] The prosecution agreed to the exclusion from the evidence of Ms Watson that Lloyd and Kerry had told her that the applicant and someone called 'Turkish' were the other persons involved.

[17] The prosecution also agreed to the exclusion of a statement made by Kerry shortly after the guns were found that the guns had been given to her by the applicant, and that the memory stick must have come from Jess Way when she moved out in December of 2010.

[18] The prosecution agreed to the exclusion of Renee Aro's evidence that Kerry Murrell had told her that she had done the armed robbery with Lloyd, the applicant and two others.

[19] R v Crupi (1995) 86 A Crim R 229; R v Theos (1996) 89 A Crim R 486; R v Debs [2008] VSCA 240; (2008) 191 A Crim R 231; R v Cavkic (No 2) (2009) 28 VR 341.

[20] [1968] HCA 21; (1968) 117 CLR 313 ('Thompson and Wran'), 316; see also R v Glen [1973] VicRp 80; [1973] VR 809.

[21] [1946] 1 KB 531, 538.

[22] Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313, 316.

[23] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 524-5 (emphasis added) (citation removed).

[24] [1968] HCA 21; (1968) 117 CLR 313.

[26] [1977] HCA 43; (1977) 137 CLR 517.

[28] (2001) 208 CLR 593.

[30] Australian Law Reform Commission, Evidence, Interim Report No 26 (1985), [420] ('Weaknesses of Eyewitness Identification').

[31] (1996) 89 A Crim R 486, 493.

[32] [2001] VSCA 209; (2001) 4 VR 79, 94-5.

[33] [2007] HCA 59; (2007) 235 CLR 521('Evans').

[36] Evidence Act 2008, s 137.

[37] There was no reference to the evidence of Timothy Scanlon: see above, [117].

[38] R v Callaghan [2001] VSCA 209; (2001) 4 VR 79 (Winneke P, Brooking JA and O'Bryan AJA) ('Callaghan').

[41] (1996) 89 A Crim R 486 at 493.

1. [42] R v Marijancevic (1993) 70 A Crim R 272 at 278.

[43] The directions that a trial judge might need to give to a jury with respect to the identification of an inanimate object will differ according to whether the identification of the object is, or is not, a significant component of the proof of guilt: R v Marijancevic (1993) 70 A Crim R 272, 278 (Teague J; Brooking and Coldrey JJ concurring); R v Clout (1995) 41 NSWLR 312, 320-322 (Kirby ACJ); R v Crupi (1995) 86 A Crim R 229, 239-243 (Crockett, Nathan and Vincent JJ); R v Lowe [1997] NSWSC 160; (1997) 98 A Crim R 300, 314-318 (Hunt CJ at CL; Smart and Ireland JJ concurring); R v Whelan [2003] NSWCCA 59; (2003) 56 NSWLR 454, 467 [46]-[48] (Hodgson JA; Dowd and Barr JJ concurring).

[44] Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 ('Evans').

[48] Evans v The Queen [2006] NSWCCA 277; (2006) 164 A Crim R 489, 505 [136] (James J), (Hidden and Hoeben JJ concurring).

[49] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 325 [91] (McHugh J).

[50] Evidence Act 2008, s 57.

[51] Evidence Act 2008, s 56(1).

[52] Evidence Act 2008, s 137.

[53] Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313 ('Thompson and Wran').

[57] Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 ('Driscoll').

[61] Festa v The Queen (2001) 208 CLR 593 ('Festa').

[68] Ibid 633 [124]-[127] (McHugh J); 662 [230] (Hayne J).

[69] R v Crupi (1995) 86 A Crim R 229 ('Crupi').

[72] R v Theos (1996) 89 A Crim R 486 ('Theos').

[73] The dubious nature of such evidence may be gleaned from cases such as Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650; R v Tadic [2003] VSCA 28; Neville v R [2004] WASCA 62; (2004) 145 A Crim R 108; and Anandan v R [2011] VSCA 413.

[78] Callaghan, above n 38.

[79] See also R v Dunmall [2008] VSCA 22 (Ashley and Kellam JJA, and Hansen AJA), where the finding of a .22 sawn-off rifle was said to be 'central' to the prosecution case.

[80] R v Debs [2008] VSCA 240; (2008) 191 A Crim R 231 ('Debs').

[83] [1977] HCA 43; (1977) 137 CLR 517 at 533.

[84] See also Festa (2001) 208 CLR 593 at 621 [90], where McHugh J referred to the principle that inadmissible evidence which is 'inextricably connected' with admissible evidence may be admissible on that basis.

[85] Compare R v Tracey & Ors (No 6) [2005] SASC 360, where evidence as to the finding of shot gun shells not used in the murder was held to be relevant and admissible because of a recorded conversation relating to shells and bullets and the finding of discarded shells and bullets. The bullets were linked to two of the accused by finger print evidence.

[86] Driscoll [1977] HCA 43; (1977) 137 CLR 517 at 533 (Gibbs J).

[87] Query whether the reasoning in Festa might apply if the Crown case against a person charged with murder was that they were a killer for hire.

[88] R v Cavkic (No 2) (2009) 28 VR 341 ('Cavkic').

[91] R v Clune (No 2) [1996] VicRp 1; [1996] 1 VR 1 ('Clune').

[93] Pitkin v The Queen [1995] HCA 30; (1995) 130 ALR 35; (1995) 69 ALJR 612.

[94] But see Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158; (2014) 88 ALJR 779 ('Fitzgerald').

[95] The prosecutor attempted to explain the evidence away in his final address, when he said:

Now, I actually just wanted to pause there briefly to talk about this sawn off air rifle. I think Jim Frangos described it as a sawn off shotgun. Clearly the gun recovered is a sawn off air rifle. You would have heard this morning's evidence from Mr Scanlon. He described it in his statement as a sawn off air rifle. He's then cross examined on it and says perhaps he's not entirely sure but what I would say to you is this. I suggest to you that the whole purpose of sawing an air rifle down like that is to make it look like a sawn off shotgun. It's not going to improve your air rifle, I can assure you of that. And once you do that, people see a weapon like that, I suggest, and they think sawn off shotgun. But that's a matter for you.

[97] R v AJS [2005] VSCA 288; (2005) 12 VR 563.

[99] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466; R v Wilkes & Briant [1965] VicRp 64; [1965] VR 475; R v Jellard [1970] VicRp 98; [1970] VR 802; Bellizia v Meares [1971] VicRp 78; [1971] VR 641, 644-5; R v Anderson [1996] VICSC 17; [1996] 2 VR 663, 666-7; R v Franks [1998] VSCA 100; [1999] 1 VR 518, 524-5; R v De'Zilwa [2002] VSCA 158; (2002) 5 VR 408, 416-17; R v Dardovska [2003] VSCA 4; (2003) 6 VR 628, 633; R v Taylor [2004] VSCA 189; (2004) 10 VR 199, 205-6, [23]; R v Yusuf [2005] VSCA 69; (2005) 11 VR 492, 499-500, [15].

[100] Jury Directions Act 2013, s 1.

[102] In discussion prior to the Charge concerning necessary directions, the judge said the case was 'a sort of jigsaw puzzle type case rather than strands in a cable, I would have thought'. When the prosecutor said in response that he was 'wondering about the terms of the concept of strands', the judge replied: 'Look, forget it. We don't have to talk about that. It's a distraction'.

[103] See Fitzgerald, above n 94.