Nicholls v The Queen [2016] VSCA 250

1 After a trial before a County Court jury, the appellant was convicted of two charges of intentionally causing serious injury. He was sentenced to eight years' imprisonment on each charge. The total effective sentence was 11 years' imprisonment and a non-parole period of eight years was fixed. The appellant appeals by leave against both conviction and sentence.

2 As will appear, defence counsel elected not to seek to have the charges tried separately. The ground of appeal against conviction contends that the joint trial of the charges resulted in a substantial miscarriage of justice. It was common ground on the appeal that the question for determination was whether, viewed objectively, defence counsel's forensic decision not to seek separate trials could be explained 'on the basis that it resulted or could have resulted in a forensic advantage' to the appellant.[1]

3 The submission for the appellant was that the decision not to seek separate trials was not capable of explanation on that basis. That is, there was 'no conceivable forensic advantage' to be gained by adopting that course. Alternatively, any such advantage was overwhelmed by the grave disadvantage which inevitably attached to the adoption of that course. The submission for the Crown, on the other hand, was that defence counsel's decision could be seen to have had a rational foundation in forensic advantage and, hence, that there was no miscarriage of justice.

4 For reasons which follow, I consider that the submission for the appellant must be upheld. To the extent that any forensic advantage accrued to the appellant from having the charges heard together, that advantage was

slight in comparison with the disadvantage resulting from the course in question.[2]

That being so, the course taken at trial 'was not the result of an informed and deliberate decision',[3] and the loss of a chance of acquittal - at least on charge 1 - constitutes a substantial miscarriage of justice.

5 I would therefore allow the appeal against conviction. Since, however, my view on the conviction appeal is a minority one, the appeal against sentence remains to be considered.

6 In relation to that appeal, I have had the advantage of reading in draft the reasons of Osborn and Santamaria JJA. For the reasons which their Honours give, I too would dismiss the appeal.

7 The charges against the appellant related to two separate incidents, more than five months apart. Although each incident involved an alleged shooting, the victims were different.

8 The shooting the subject of charge 1 was alleged to have taken place on 18 June 2012. It was alleged that the appellant had shot the victim, 'A', in the leg. A said that he could not recall the circumstances of the shooting. As a result, the evidence on which the Crown could rely comprised:

• medical records recording A's attendance at hospital on that day, with a 'blast injury' to his leg, and his statement that he had been shot with a shotgun that afternoon;
• an alleged admission in written notes kept by the appellant;
• an alleged admission made by the appellant to one Trent Schiller; and
• evidence from neighbours who had seen the appellant in the vicinity at the relevant time and had heard (but had not seen) a shot being fired.

9 Plainly enough, the evidence of the alleged admission to Schiller would be a key part of the Crown's case on this charge. It should be emphasised that Schiller had played no part in the incident giving rise to the charge. His evidence would be that the appellant had made the admission to him in the course of various conversations which they had had subsequently.

10 The shooting the subject of charge 2 was alleged to have taken place on 8 January 2013. In relation to this charge, Schiller would give eyewitness evidence, to the effect that he was standing beside the appellant when the appellant shot the victim 'S'.

11 At the commencement of the trial, defence counsel told the judge that there would be no application for separate trials. Following discussions between the prosecutor and defence counsel, the prosecutor filed over an amended indictment. As amended, the indictment contained the two charges of intentionally causing serious injury but had had removed from it two charges relating to the appellant being a prohibited person using and possessing a firearm. The prosecutor told the judge that the future of the firearms charges would depend on the outcome of the trial.

12 Defence counsel also informed the judge that there would be no dispute about the appellant's presence at the respective locations where the shootings were alleged to have taken place. As counsel put it, 'We simply say that we weren't - we didn't shoot him; either of them.'

13 As already mentioned, the shooting of S took place on 8 January 2013. In April 2013, Schiller was arrested and charged with the shooting. (He was charged with intentionally causing serious injury.) Earlier, Schiller had been interviewed by police both about the shooting and about his activities in selling firearms. As he confirmed under cross-examination, he realised by the end of that interview that he was 'in serious trouble' regarding the firearms sales.

14 Almost 18 months later, Schiller pleaded guilty to a series of firearms offences, comprising:

• five charges of possessing firearms whilst prohibited;
• a charge of carrying on business as a firearms dealer without a licence;
• three charges of handling stolen goods; and
• one charge of possessing cartridge ammunition without a licence.

15 Despite the seriousness of those charges, Schiller received a fully suspended sentence. In his reasons for sentence, the sentencing judge said:

I accept that the assistance you are providing in respect of the [S] shooting is significant as you were a witness to that shooting. ... You are also providing assistance in respect of a second shooting [the shooting of A]. The prosecution did acknowledge the great significance of your undertaking to assist in the prosecution of others and the prosecution acknowledged that this justified a significant discount in sentence.

16 Schiller had undertaken to give evidence at the trial of the appellant in respect of both charges, in accordance with statements which he had by then given police. The statement with respect to the shooting of A described the appellant's alleged admission of responsibility for the shooting. The statement with respect to the shooting of S contained Schiller's eyewitness account of the appellant shooting the victim.

17 The other significant benefit which Schiller received for his co-operation was the dropping of the charge of shooting S. By the time he pleaded guilty to the firearms charges, that charge had been withdrawn.

The forensic decision: attacking Schiller's credit

18 Plainly enough, the fact that Schiller received substantial benefits in return for his undertaking to give evidence against the appellant provided a firm basis for attacking his credit. As defence counsel pointed out in cross-examination of Schiller, had it not been for his plea of guilty to the firearms offences (and his undertaking to co-operate) he would have received a sentence of 'something like four years with a non-parole period of two and a half'. And the charge of intentionally causing serious injury to S carried a maximum penalty of 20 years' imprisonment.

19 According to the Crown, the advantage to the appellant of having the charges heard together was that the attack on Schiller's credit would be founded on the combination of these benefits - that is, avoiding imprisonment on the firearms charges and having the charge of causing serious injury to S dropped. The more substantial those benefits could be demonstrated to have been, so it was said, the more plausible would be the defence contention that Schiller had an incentive to make false statements about the appellant.

20 On the other hand, as counsel for the appellant emphasised, adopting this course would have the very significant disadvantage that the jury would hear that the appellant was involved in not one but two alleged shootings and, in particular, would hear Schiller's evidence that he had seen the appellant shoot S in the leg. Had the charges been tried separately, the jury on each occasion would have heard evidence relevant only to the particular charge. The Crown did not contend at any stage that the evidence with respect to one shooting was cross-admissible in the trial with respect to the other.

21 Thus, if charge 1 (with respect to the shooting of A) had been tried separately, the jury would have learned nothing of the appellant's alleged involvement in a second shooting some six months later. As already noted, the evidence to be given by Schiller - of the appellant's alleged admission - would have been the centrepiece of the Crown's case on charge 1. The contention for the appellant was that, in those circumstances, a very effective attack could have been mounted on Schiller's credibility notwithstanding that no reference could be made to the dropping of the charge relating to the shooting of S.

22 Senior counsel for the appellant explained, in response to questions from the bench, how such a cross-examination might have been conducted. Particular attention would have been drawn to the great benefit which Schiller had derived in receiving a suspended sentence with respect to the serious firearms charges. Attention would also have been drawn to the fact that it was not until June 2013, some weeks after the interview at which he learnt that police were aware of his gun-dealing activities, that he had made his statement incriminating the appellant in the shooting of A. Schiller would also have been cross-examined about:

• his prior convictions for offences of violence and dishonesty; and
• the fact that, at the time of the alleged confession by the appellant, he (Schiller) had been using Xanax and that, as a result, had been 'off his head'.

23 According to the submission for the appellant, for a jury considering charge 1 to hear Schiller's eyewitness evidence in relation to charge 2 could only ever have been disastrous for the appellant's prospects of acquittal on charge 1. It was of particular significance, it was said, that both charges involved a shooting arising out of a drug debt, and the victim being shot in the leg. Because of these 'compelling similarities' there was every prospect that, once the jury heard Schiller give evidence that he had stood beside the appellant as he shot S, such doubts as they might otherwise have had with respect to charge 1 would be dispelled. In those circumstances, it was submitted, no reasonable counsel could have made the decision to proceed with a joint trial of the charges, rather than seek to have them tried separately.

24 The submission for the Crown was that defence counsel's decision could be seen to be explicable on the basis referred to earlier, namely, that it would enable him to expose the full extent of the benefits received by Schiller for his co-operation and, hence, maximise the effect of the attack on his credit. When asked whether the potential disadvantages of that course had also to be considered, senior counsel for the Crown submitted that it was neither necessary nor appropriate to consider the disadvantages. It was sufficient that there was some identifiable benefit attaching to the course of conduct. The only possible exception was 'where the advantage [was] so minuscule and the disadvantage so huge' that the decision could be seen not to have been a rational one.

25 When an appeal court is deciding whether a course adopted by trial counsel can be seen to be explicable on the basis of forensic advantage, regard must be had not only to the perceived advantage but also to any obvious disadvantage of the course adopted. It is easy enough to imagine circumstances where a particular course of action would be likely to produce some short-term advantage but would produce substantial long-term disadvantage - for example, where a particular line of questioning might aid in the discrediting of one witness but, in the process, would elicit evidence which seriously damaged the defence position.

26 Self-evidently, it cannot be a 'rational forensic decision' to adopt a course which will be to the accused's net disadvantage. By definition, such a course will damage, rather than enhance, the prospects of acquittal. This view accords with what was said by Gaudron J (with whom Gummow J agreed) in TKJW:

Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question.[4]

27 In my opinion, this was a case where the forensic advantage flowing from having the charges tried together was modest, at best. There was a powerful credit point to be made against Schiller and it was, in my view, able to be made very powerfully by reference only to the very lenient sentence which he received on the firearms offences.

28 The jury would readily have understood the 'incentive to lie' argument in relation to the suspended sentence. It must be doubted whether reference to the additional benefit which Schiller derived - in having the shooting charge dropped - would have materially affected their assessment of his credit. (Certainly, nothing in the cross-examination suggests otherwise. Although the dropping of the shooting charge was mentioned, the focus was principally on the firearms offences and the suspended sentence.)

29 When defence counsel put to Schiller that he had only come to court to give evidence against the appellant in order 'to hang on to the suspended sentence' for the firearms offences, Schiller responded as follows:

To be honest, I'd be here regardless whether I was in prison or whether I was ... I've stated clearly I'm not doing time for someone else's crime, whether I'm in gaol or ...

Schiller could thus respond - quite plausibly - that he would have given evidence against the appellant in relation to charge 2 irrespective of any undertaking to co-operate. He would have done so because, on his version, it was WN who alone was responsible for the shooting of S and he (Schiller) would have wanted to make clear his own lack of responsibility (as he duly did in the witness box.) Had Schiller only being giving evidence of the appellant's alleged admission with respect to charge 1, no such response would have been available to him to deflect the credit attack in that way.

30 In my view, any reasonable assessment of the options open must have led to the conclusion that it would be highly damaging for the appellant's prospects of acquittal on charge 1 for the jury considering that charge to hear Schiller's evidence with respect to charge 2. Although there was some scope for challenging Schiller's version of events, his precise account of the appellant's actions - pulling out the gun, releasing the safety catch and pulling the trigger - was always going to have a powerful impact on a jury.

31 In those circumstances, such advantage as was likely to flow from the charges being tried jointly was 'slight in comparison with the disadvantage resulting from the course in question'. Defence counsel's decision was not, therefore, 'an informed and deliberate decision', or a 'rational forensic decision', as those phrases are used in the authorities, and it resulted in the appellant losing a chance of acquittal (at least) on charge 1. It follows that the convictions cannot stand.

32 For completeness, I should add that the prejudice to which I have referred was not capable of being cured by the separate consideration direction which the judge gave. On the contrary, it is precisely because cases such as this test the ability of 'even the most conscientious jury ... to adhere to judicial directions' that an application for severance would almost certainly have succeeded.[5]

33 On 18 February 2015, the appellant, William Nicholls (now aged 35), was found guilty of two charges of causing serious injury intentionally following an 11 day trial in the County Court at Geelong.

34 Following a plea on 26 February 2015, the appellant was convicted and sentenced on 23 March 2015 as follows:

Intentionally Causing Serious Injury [Crimes Act 1958 (Vic) s 16]

35 On 28 January 2016, Maxwell P granted leave to appeal conviction on the following ground:

(a) A substantial miscarriage of justice arose as a result of the two charges faced by the appellant being tried together.

36 Leave to appeal sentence was also granted, on the following ground:

(a) The individual sentences, total effective sentence and non-parole period are manifestly excessive.

Circumstances of the offending - the first shooting (charge 1)

37 On 18 June 2012, the appellant was at his home. He owed the victim, 'A', money for drugs. The appellant described the nature and circumstances of the debt in a notebook or diary, which was tendered in evidence.

38 A arrived at the appellant's premises at about 4:00 pm. The appellant heard an argument in the front yard and went outside carrying a shotgun which he pointed at A. The appellant was alleged to have then shot A at close range in the leg. The shot removed a portion of A's calf. A began hopping and yelling in pain. The appellant was seen by neighbours striking the victim after the victim had been shot.

39 A was taken to Geelong Hospital by ambulance. He arrived in the Emergency Department soon after 5:00 pm. He told staff at the hospital that he had been shot with a shotgun once in the lower leg about an hour previously.

40 There was a large deep wound measuring approximately 20 x 15 centimetres to the lateral part of the left lower leg. X-ray scans confirmed large skin and muscle loss but no sign of bony injury. A was treated at Geelong Hospital and later at the Alfred Hospital in Melbourne. He was operated upon on 21 June 2012. The wound was debrided, that is, cleaned of all dead tissue, washed and skin grafts were applied.

41 At trial, A said that he could not recall the circumstances of the shooting and thus could not identify the shooter. In addition to circumstantial evidence relating to the shooting itself, the Crown relied on an alleged confession subsequently made by the appellant to one Trent Schiller that he had shot A.

42 The defence case was that A had been shot by an unidentified person other than the appellant and that a statement to this effect contained in the appellant's diary should be accepted as sufficiently credible to create reasonable doubt as to the appellant's guilt.

Circumstances of the offending - the second shooting (charge 2)

43 On 8 January 2013, the appellant and Schiller went to the North Shore house of 'S'. S and another man, Andrew Cowton, were present at the house. The appellant was seeking to obtain money in connection with a previous transaction relating to drugs. Once inside S's home, a conversation about drugs took place. The appellant asked S if he was 'cooking' and pressed him in this regard.

44 The Crown case was that, dissatisfied with S's response, the appellant then pulled a .22 Beretta pistol from his clothing, and shot S in the right thigh at close range. The appellant and Schiller then left. Closed circuit television stationed outside S's house recorded the appellant holding a hand gun as they were leaving the premises.

45 S was taken by ambulance to the Emergency Department of the Geelong Hospital. A doctor examined him and noted a single wound on his inner thigh with associated bruising.

46 X-ray scans revealed numerous metallic foreign bodies embedded within the soft tissue of the outer aspect of his thigh with a large metallic foreign body underneath the skin. S was operated upon and the foreign bodies were removed from his thigh.

47 At trial, S gave evidence that, of the three men present at the time of the shooting, namely Cowton, Schiller and a man unknown to him, it was the unknown man who had shot him.

48 The handgun was subsequently found in Schiller's possession.

49 The defence case was that Schiller was the shooter.

50 During the hearing of the appeal, the appellant advanced three principal contentions in support of his single ground of appeal that a substantial miscarriage of justice occurred by reason of the trials for both charges being heard together:

(a) there had been an improper joinder of offences on the indictment;

(b) there was a miscarriage of justice insofar as there was no demonstrable forensic advantage to the defence in having the matters tried together;

(c) the trial judge failed, in the circumstances, to give adequate directions where the Crown had not sought to have the evidence on one charge cross-admissible on the other.

Improper joinder of offences on the indictment

51 At the hearing of the application for leave to appeal, senior counsel for the appellant submitted that 'there was improper joinder on the indictment, particularly in circumstances where there was no attempt or object in doing so by the Crown to have evidence crossadmissible between the two'. He submitted that there was no convenience in having both trials run together; in fact, the holding of consecutive trials would have been simpler. The offences were not related: 'There is no common victim. There is no common witness and I say that because Schiller is only a witness as to something he says he was told by Nicholls. He's not a common witness. There is no common weapon. There is no common similarity. There is no coincidence. There is no tendency (evidence)'. Moreover, he submitted that the offences exhibited dissimilarities: the first one happened at the appellant's house, while the second happened at S's house; A came to the appellant's house on the first occasion, while the appellant went to S's house on the second occasion; a shotgun was said to be used on the first occasion, and a handgun on the second occasion. The seven month gap between the two offences is substantial. Further, it was submitted that the circumstances of the two offences were different: in the first offence, it is said that a drug dealer had come from Melbourne to extort money from the appellant; in the second case, the appellant went to the house of the victim to obtain money. If two offences are to be placed on the same indictment, there must be a degree of cross-admissibility of evidence.

52 The joinder of charges in a single indictment is authorised by cl 5 of sch 1 of the Criminal Procedure Act 2009 ('the Criminal Procedure Act') which provides:

Joinder of charges

(1) A charge-sheet or indictment may contain charges for related offences, whether against the same accused or different accused.

(2) If more than one offence is charged in a chargesheet or indictment, the particulars of each offence charged must be set out in a separate, consecutively numbered paragraph.

...

53 Schedule 1 forms part of the Criminal Procedure Act,[6] and s 3(1) of the Criminal Procedure Act defines 'related offences' in that Act to mean:

offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.

54 Section 193(3) of the Criminal Procedure Act provides:

(1) If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately.

(2) If an indictment names more than one accused, the court may order that charges against a specified accused be tried separately.

(3) The court may make an order under subsection (1) or (2) if the court considers that -

(a) the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or

(b) a trial with the co-accused would prejudice the fair trial of the accused; or

(c) for any other reason it is appropriate to do so.

55 The critical question is whether the two charges on the present indictment were 'offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character'. The statutory words are not technical; they are ordinary words that should be given their ordinary meaning.

56 In De Jesus v The Queen,[7] the High Court was considering s 585 of the Criminal Code (WA).[8] Dawson J said:

It was under the last part of the section that application was made to the trial judge for separate trials in this case, it being conceded that joinder was permissible under the first part of the section. I am inclined to think that the concession was correctly made. Even though only two counts of rape were charged, it is now clear that two offences might amount to a series even if in another context such a limited number might be insufficient. In R v Kray, it was pointed out that this view had been accepted for fifty years and that any other view would produce the perverse result that 'whereas three murders could be charged in the same indictment two could not'. See also Ludlow and R v Anderson.

However, for two or more offences to constitute a series there must be a nexus or a connection between them. This, I think, is something different from the express requirement in s. 585 that the offences must be of the same or a similar character. Whatever may historically be behind the use of those words (cf. Archbold's Criminal Pleading Evidence & Practice), as a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. Thus offences of rape are of the same kind and other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape.

Similarity may also indicate a nexus, but similarity of that kind relates to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics. The distinction may not be one which can be maintained with total precision, but it is useful because otherwise the expression used in s. 585 - 'a series of offences of the same or a similar character' - is somewhat tautological, since similarity is itself one of the hallmarks of a series. Thus it was that Lord Pearson remarked in Ludlow that 'Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.' Even in that statement there is an element of circumlocution, but it is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a 'series' without straining the word beyond the meaning which it is reasonably capable of bearing.

In the present case the two counts of rape with which the applicant was charged were the same offences in law. There was, I think, a sufficient similarity in fact to constitute them a series in that the Crown alleged that each offence occurred in the early hours of the morning after the attendance of the accused at the same nightclub. Of course, there were dissimilarities and, the question being one of degree, it is one upon which minds might differ. But, as the authorities recognise, that is of less significance because of the discretion given to the trial judge to direct separate trials if prejudice to the accused is likely to arise from the joinder and the provision allowing joinder should not, because of the discretion, be given an unduly restricted meaning: Kray.[9]

57 In DPP v Lamb (a pseudonym),[10] the Court referred with approval to the decision in R v Cogley.[11] In the latter case, the applicant was charged in the one presentment with intentionally causing serious injury (count 1) and murder (count 2). He was found guilty on both counts. On the first count, the applicant had shot the victim in the leg. The second count related to an incident 10 days later, when the applicant shot another man in the head. The defence to count 1 was that the shooting was accidental in the course of a struggle among a number of people, including the applicant, but that the applicant did not fire the gun. On the murder count, the defence was that the victim committed suicide by shooting himself. The relevant procedural rules were not materially different from those that operate at present under the Criminal Procedure Act.

58 Buchanan JA (with whom Brooking and Tadgell JJA agreed) said:

Rule 2 of the Presentment Rules permits joinder of charges in one presentment 'if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character'. Two offences may constitute a 'series' within the meaning of the rule. In order for a number of offences to be a series of offences of a similar character, there must be some nexus between the offences, that is, elements of similarity which in all the circumstances of the case enable the offences to be described as a series. Ludlow v Metropolitan Police Commissioner; R v Kray; R v Wright and Haigh. In R v Kray Widgery LJ, delivering the judgment of the court said:

All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together.

... The rule is not limited to cases where the evidence upon one charge is admissible upon the other or others. See R v Kray; Ludlow v Metropolitan Police Commissioner; R v McGlinchey; R v Cannan. Whether the discretion to sever the counts [under the former equivalent to s 190(3)] should have been exercised in my view depended principally upon whether the prejudicial effect of the jury hearing the evidence relating to both counts could have been countered by appropriate directions. If the counts were not to be severed, the evidence relating to count 1 could be used for the purposes of count 2 only as bearing on the provenance of the pistol. The evidence was of considerable importance in this regard for the plausibility of the applicant's account of the circumstances in which Hitchens died depended to a large extent upon the gun being returned to Hitchens not being the gun of the applicant.

If the presentment was not to be severed notwithstanding that in general the evidence relating to one count was not admissible on the other, the jury should have been instructed to consider the evidence relating to each count only in determining that count and warned not to use the evidence relating to one count for the purposes of the other count. The jury should have been told that the only relevance to count 2 of the evidence on count 1 was that it showed the origin and possession of the gun. The jury should have been warned about using in any way the conclusion that the applicant was guilty on one count for the purposes of the other count, and specifically warned against reasoning that the applicant was guilty on one count because his guilt on the other count showed that he had a propensity to commit crimes of the type the subject matter of the counts.[12]

59 In the present case, there was 'a sufficient correlation to enable the offences to be described as a "series"'. The test is straight-forward and readily satisfied; any injustice is guarded against, as Dawson J said in De Jesus v The Queen, 'because of the discretion given to the trial judge to direct separate trials if prejudice to the accused is likely to arise from the joinder'.[13] The charges were in respect of the same offence: intentionally causing serious injury; the circumstances in which the conduct was said to have occurred was similar: the offences were said to have involved drug debts; the mode of the offending were sufficiently similar: the victim was shot in the leg; and, finally, the offences took place within only a seven month period.

60 Accordingly, we would reject the first of the principal contentions in support of the ground of appeal.

Was there a miscarriage of justice in that the charges were not severed?

61 The appellant contended that there had been a miscarriage of justice in so far as the charges had not been severed.

62 The appellant submitted that there was no demonstrable forensic advantage to him in having the charges tried together. He submitted that the potential for a miscarriage arose from (a) the allegation that he was the shooter in both cases, even though different weapons were used; (b) the allegation that both incidents arose in relation to apparent drug debts; and (c) the fact that the mode of assault was the same: both victims were shot in the leg. The Crown did not suggest that there should be cross-admissibility of evidence, that is that the evidence in respect of the one offence should be admissible in respect of the other. In those circumstances, the appellant contended that the need for vigilance and caution was even higher, given that there were broad similarities in the allegations.

63 The appellant further submitted that, in particular, there was no forensic advantage in not having charge 1 heard alone. It was submitted that Schiller's evidence that the appellant had confessed to him in respect of the first shooting was pivotal to the prosecution case on that charge. The appellant contended that the cross-examination as to Schiller's credit with respect to charge 1 could have been conducted without the jury being made aware of the evidence about the second shooting or the second charge. A number of matters were said to go to Schiller's credit. In particular, Schiller had obtained a material sentencing advantage in respect of certain firearms charges (see [97] below) by co-operating with police. He also had a prior record, had used the drug Xanax which could lead to cloudy memories, had been charged with firearms offences and was on bail when he made a statement about the appellant's alleged confession late in June 2013. Further, the appellant denied that he was the shooter in his diary, but Schiller had seen that diary and thus was aware of the general circumstances of the shooting.

64 The appellant submitted that the matters put in cross-examination and in the defence address in respect of charge 1 did not require a mix of the evidence relating to charge 2 in order to be understood. Further, the appellant contended that the attack on Schiller's credit could have been tailored in a separate trial on charge 1 to avoid crossing over into evidence of the second shooting. The appellant submitted that this approach would have maximised the opportunity for an acquittal on charge 1.

65 The appellant conceded that charge 2 was an objectively stronger case. It was based primarily on eye witness evidence and CCTV footage. However, the appellant submitted that the defence's case on this charge would have benefitted considerably from the absence of evidence of a similar, but unrelated, charge 1. The appellant contended that each incident had an 'identifying stamp' that made it too coincidental for the two incidents not to have a common shooter and that there was a temptation for the jury to engage in impermissible coincidence or even tendency reasoning.

66 It may be accepted that the trial judge had power to sever the indictment so that the two charges were heard separately. There is no doubt that there were risks in having the two charges decided at the same time. As Brennan J put it in Sutton v The Queen:

When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. There may be an exceptional case where countervailing factors appear but I do not presently foresee them.[14]

67 The principal difficulty that the appellant faces is that, at trial, counsel for the appellant expressly accepted that the two charges should be tried together. At the commencement of the hearing, the transcript records the following exchange

[Counsel for appellant] And I should indicate, Your Honour, we are proceeding - we're not seeking separate trials, and I mentioned that to Mr Bourke.

His Honour Yes.

[Counsel for appellant] And I've indicated to him, Your Honour, that we're not - and for Your Honour's sake we're not suggesting we weren't either.

It has been settled, at least since Stirland v Director of Public Prosecutions, that it is not necessarily fatal to an appeal that counsel for the accused at the trial failed to raise the necessary objection. Of course, if it were thought that counsel had deliberately refrained at the trial from submitting that the joinder was impermissible, in order to gain some tactical advantage, the case would be different, but it is apparent that in the present case counsel for the applicant simply proceeded on a misunderstanding, shared by counsel for the Crown, as to the correct principle to be applied.[15]

69 In the present case, counsel deliberately refrained from seeking severance of the indictment.

70 The Court will be slow to identify that there has been a miscarriage of justice where the particulars of the alleged miscarriage reflect the deliberate choice of defence counsel.

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.[16]

It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.

Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice.[17]

73 However, in the same case, Gaudron J identified the residual power of an appellate court to intervene even though counsel had taken a deliberate tactical decision. Her Honour said:

As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of 'flagrant incompetence', 'egregious error' or the like.

An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial. ...

Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question.[18]

A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. ... It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function.[19]

The reluctance of courts of criminal appeal to enter upon an assessment of the performance of trial counsel is well-founded in considerations both of principle and of pragmatism. That reluctance is reflected in the way in which courts respond to an argument that there has been a miscarriage of justice arising from the incompetence of counsel. Such arguments are becoming increasingly common. Nowadays, when most criminal trials and appeals are funded by legal aid, appellants are often represented by counsel who did not appear at the trial. By hypothesis, trial counsel lost; an appellant supported by legal aid will often want new counsel to conduct the appeal. The client may well be dissatisfied with the performance of trial counsel. Appeal counsel will have his or her own ideas about the way the defence case should have been conducted. Inevitably, in some cases, trial counsel will be blamed for failure. Such blame is pointless unless it can be related to a legal rubric of relevance to the jurisdiction being exercised by the court of criminal appeal. The relevant rubric is miscarriage of justice.[20]

In this case, on any assessment, whether subjective or objective, counsel's conduct was incompetent to a serious degree. So too, on either a subjective or an objective assessment, some at least of counsel's conduct cannot be rationally justified or explained, although perhaps it can be said that the overstatement of the matters required to be proved by the prosecution may have contributed to the appellant's counsel's further and significantly greater overstatement of them. That is not however the end of the matter. Was the appellant's trial a fair one in all of the circumstances? Did justice miscarry to the extent that the appellant was deprived by his counsel's conduct of a chance of an acquittal? In answering these questions, we keep in mind that the more apparently serious the offence, the greater the need there generally will be for punctiliousness in all respects in the conduct of the trial.

In the end we have come to the conclusion that the appellant was not deprived of a chance of an acquittal despite the incompetence of his counsel at the trial. This is so because we consider the case against the appellant to have been a strong one, and indeed one which was effectively unanswerable.[21]

76 In Patel v The Queen, French CJ, Hayne, Kiefel and Bell JJ said:

The respondent submits, nevertheless, that there was no miscarriage of justice, in the sense of a lack of fairness to the appellant, because the appellant did not object to much of the evidence and did not seek to make it the subject of any particular directions. Certainly there must be exceptional circumstances for the Court to grant special leave to appeal where an applicant did not object at trial to the tender of evidence which is subsequently found to have been improperly admitted. Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel. The correctness of their counsel's decision for the most part will not be relevant, for it is the fairness of the process which is in question. Where it can be seen that a failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process.[22]

77 In James v The Queen,[23] Maxwell P surveyed the authorities cited by the High Court in Patel before concluding that:

... in the appellate consideration of whether the course of a trial has occasioned a miscarriage of justice, very great significance is attached to informed decisions made by defence counsel about the best way to conduct the trial in the interests of the accused. As will appear, the proposition which underpins those decisions is that, in an adversarial system, the making of such decisions on behalf of an accused is itself an exercise of the right to a fair trial.[24]

78 In the light of the above authorities, the question becomes whether there has been a miscarriage of justice notwithstanding the decision taken by trial counsel not to apply for severance given that, in the absence of severance, the charges would be heard together.

79 In essence, the appellant submits that it was not reasonably open to make a forensic choice not to seek severance of the two charges. Any forensic advantage derived from that course was slight and the disadvantage was overwhelming. The course taken cannot be regarded as the product of a rational, informed decision.

80 This is a case in which, to use the words of Gibbs CJ in De Jesus v The Queen 'counsel had deliberately refrained at the trial from submitting that the joinder was impermissible'.[25] It is a not a case in which counsel simply acquiesced in the particular course but rather one in which a choice was made because of perceived forensic advantage.[26]

81 The choice was made despite the fact that because the Crown had not suggested that there was any cross-admissibility of evidence, an application for severance would have been irresistible. Even where properly directed, a jury may have had difficulty putting aside the evidence adduced on the second charge when considering the first charge. By not applying for severance and, in fact, allowing the two charges to be heard together, counsel was running a risk. It was an obvious risk: the jury might allow the evidence on one charge to supplement any deficiencies on the other.

82 The forensic choice was made in circumstances where the Crown case in respect of both charges 1 and 2 was relatively strong.

83 The first shooting took place on 18 June 2012. Although there was no eye witness evidence of the shooting of A, it was uncontroversial that he was shot at the appellant's house. There was eye witness evidence that, immediately after the shooting, the appellant was hitting the victim of the shooting, A. A was 'hopping around' and was then felled by the appellant. There was another man present who was holding a gun. Another witness heard a loud 'bang' that sounded like a gunshot. She saw about 6 men at the front of the appellant's house. One man was 'hopping up the driveway'. She heard a great deal of yelling. She saw the appellant 'hitting or slapping the injured person'. She saw the appellant leave the scene in a Honda, and come back a few moments later on foot. When the police arrived, they placed A in an ambulance. A was yelling at the appellant and 'he gestured across his throat with his finger towards' the appellant. A was taken to Geelong Hospital. He was observed to have been shot once in the lower left leg.

84 A member of the police arrested the appellant. He was taken to Geelong Police Station; his clothing was seized for forensic testing. The arresting officer asked the appellant to make his hands available for testing, but he refused. A senior police officer gave the necessary authority. (No authority was needed to examine the clothing.) The officer arranged for a forensic scientist to attend. He examined the appellant's hands for gunshot residue, and found none. The forensic scientist gave evidence at trial as to how residue might not be found by the time of testing. However, he found gunshot residue on the tracksuit pants, on the white runners and on the belt that had been seized from the appellant. Another police officer gave evidence that he had attended the appellant's house on the day of the shooting and had seen pellet marks clearly visible on the footpath. He also collected A's trousers which bore the marks of having been penetrated by a shotgun blast. He estimated that the muzzle of the shotgun was no greater than 1.5 metres from the area of entry at the time of discharge.

85 As it transpired, the appellant had kept a notebook (sometimes referred to as a 'diary') in which he described the events on the day of the first shooting comprising charge 1. In the original, it is handwritten, and under the heading 'Shooting' it reads (with some punctuation inserted for clarity):

After going thru [sic] the experience of seeing a dead baby, I become very protective of my own boys as I seen how easy that life could be taken away.

It was then I realised I had to make a stand against a standover drugdealer from Melb. He got me to give him a 10,000 car and said to me, that cause he was paying interest on his bill, that the bill was staying the same, in criminal terms. This was known as extortion, not business. He had taken computers, cash, cars, phones, guns, ect [sic] from me yet the bill never seemed to come down. On our last meeting he said to me, 'Come up with 40,000 and that would be soughted [sic]'. Then he told me I owed 105,000. The day come, I asked Tommy to go to Melb for me, grab my wallet as I was still battling depression from the child's death. The piece of shit held Tommy for a night. Treating him poorly and making threats to him.

I rang the next day, worried about Tommy. He wasn't aloud [sic] to talk on the phone. I instantly took offens [sic] and went into protective mode. Pissed off that they took a young bloke and were making silly threats, telling me they had thrown him in a river, and asking me if I was worried. I can still remember thinking, 'fucking wrong day', as I was mentally not in a good place. I rang a few times more. He also said to me about coming down to make me empty my bank. I thought it may have been dangerous time so I called my wife, told her to stay away as after all the shit he had told me, I don't know exactly what he was capable of and I didn't want my family at risk. I would later get hold of a shotgun for protection. I had friends come a [sic] sit with me. He rolled up my drive. I heard an argument break out in my front yard. I ran out with a 410 shotgun, pointing it at him. I didn't fire a shot. I hit him over the head with it and started fighting him. To this day, I can not say who fired the shot or who it was intended for as I don't know if anyone else was in the car with him. I could guess but that would be not fair on anyone.

After that Tommy arrived calling 000. I held the belt around his leg, stop him from bleeding out. The wound was very deep and there was a fair amount of blood. He was praying on the ground [illegible] then abulance [sic] arrived.

I was taken away to Geelong cell for questioning were [sic] I gave no comment statement. I was held as I wouldn't consent for a raid on house. This took 4 hours. I then declined [firearm] residue test which bought another 2-3 hours. I was still formally charged with shooting. But in my mind I knew I had not done it so whoever had, had enough time to clean, hands and dispose of gun. I got a friend to take my gun and dump it, never to be seen again.

After GRT is was [sic] released to be charged on summons. Still waiting on outcome if any charges will be laid.[27]

86 On 8 January 2013, the second shooting comprising charge 2 took place at S's house.

87 S had installed four CCTV cameras around his house. The CCTV footage for 8 January 2013 was available and introduced into evidence. S identified various people who attended his house on the day he was shot. In particular, at 5:33 pm, he returned to his home with one Andrew Cowton. At about the same time, the CCTV showed that a BMW car arrived at his place. Cowton went and spoke to the occupants of the BMW. S identified one of the occupants as Schiller and said that he did not know the other person. The unidentified man said that he wanted to speak to S. All four men entered S's house and went into the lounge room. There was an argument about drugs. The man that S said that he did not know took out a pistol and shot S in the right thigh.

88 Further, the CCTV footage showed Schiller and the appellant leaving S's house. In that footage, the appellant appeared to be holding a pistol.

89 On 18 April 2013, Schiller was arrested in relation to the second shooting. He was charged with intentionally causing serious injury. He was remanded in custody. He did not apply for bail.

90 Soon after, it appears that Schiller began to speak to the police and ultimately to implicate the appellant in both shootings.

91 On 8 May 2013, Schiller signed a written statement in which he implicated the appellant in the second shooting. On the same day, he applied for bail. Although the police formally opposed his bail, they gave evidence to the magistrate that he had provided a statement and had co-operated with the authorities.

92 Schiller said that the appellant had given him the pistol used by the appellant at the second shooting and asked him to dispose of it. (In the event, Schiller sold the pistol to an undercover police officer. Forensic testing revealed that the pistol had been used in the shooting of S.)

93 When he made his first record of interview, Schiller made no reference to any admission by the appellant that he had been responsible for the first shooting.

94 Schiller gave evidence that in June 2013 the police came to him and asked him about the first shooting. By that stage he was in 'cooperation mode'. He then made a statement to police that the appellant had told him that he had shot a person who was referred to as 'The Lebo' (the victim of the first shooting, A, has a Lebanese name).

95 Following this further cooperation, the charge against Schiller of intentionally causing serious injury (arising out of the second shooting) was withdrawn.

96 In turn, Schiller pleaded guilty on 8 September 2014 to a series of offences:

(a) five charges of possessing firearms while prohibited;

(b) a charge of carrying on the business of a firearms dealer without a license;

(c) three charges of handling stolen goods; and

(d) a charge of possessing cartridge ammunition without a license.

97 At the plea hearing in relation to these offences, the magistrate expressly said that he took into account the assistance which Schiller was providing to the prosecution in respect of both the shootings forming the basis of charges 1 and 2 against the appellant.

98 At the time of giving evidence at the appellant's trial, Schiller was aware that, in the event that his cooperation with the prosecution in the trial of the appellant was not forthcoming, he could be recalled for resentencing in respect of the charges to which he had pleaded guilty.

99 The strength of the case against the appellant must be appreciated; it governed the options for those involved in conducting his defence.

100 On charge 1, there were two witnesses to the aftermath of the first shooting. They saw the appellant assaulting A. There was the appellant's notebook which described the circumstances in which A had come to his house on the day of the first shooting. In the notebook, the appellant admitted that:

• he had a substantial financial and personal motive for hatred of A;
• he regarded A as a 'piece of shit';
• he sent his wife away, armed himself with a shotgun, and arranged for friends to be present in anticipation of A's visit;
• he ran out with a 410 shotgun when A arrived and pointed it at A;
• he hit A over the head with the shotgun;
• he was present when A was shot;
• he subsequently 'bought time' so that the gun could be disposed of;
• he got a friend to take his gun and dump it.

101 True, he denied shooting A; but the plausibility of that denial would be assessed by the jury. On one view, the denial was entirely disingenuous. The denial fell to be assessed having regard to the whole of the evidence, including the appellant's admissions of animus towards A, the obtaining of the shotgun prior to the shooting, the fact he admitted pointing the gun at A, assaulting A, being present when A was shot, and disposing of the shotgun.

102 Had the charges against the appellant been severed, Schiller would still have been called as a witness at the trial in respect of charge 1. He had made a statement that the appellant had admitted to him that he was responsible for the first shooting. It would have been necessary to cross-examine Schiller with a view to discrediting him. There were difficulties either way. The cross-examination would have to be done without adducing evidence of his involvement with the appellant in the second shooting. It would also have had to be done without creating a false picture such that the Crown would have been allowed, during re-examination, to open up Schiller's involvement with the appellant in the second shooting.

103 At the hearing of this appeal, counsel for the appellant (who was not trial counsel) submitted that it was possible to discredit Schiller, in respect of his evidence concerning charge 1, without opening up his involvement with the appellant in the events of the second shooting. The cross-examination, it was said, could have been confined to:

(b) the effect on his memory of the drug 'Xanax';

(c) the diary in which the appellant had denied shooting A;

(d) the fact that he had been cooperating with the police and that he had received only a suspended sentence for the serious firearm charges that he had faced; and

(e) the fact that Schiller did not mention the 'confession' when he made his first statement to police on 8 May 2013 and did not do so until 26 June 2013.

104 In our view, however, the strongest attack on Schiller's credit depended on the jury's knowing that he had originally been charged with the second shooting (he faced a charge of intentionally causing serious injury for which the maximum penalty is 20 years' imprisonment) and that he had been spared facing that charge because of his willingness to give evidence against the appellant. At a plea hearing on 8 September 2014, he was convicted of several firearms offences but, by the time of that plea hearing, the charge of having intentionally caused serious injury to S had been withdrawn.

105 Thus, the initial cross-examination of Schiller as to credit culminated as follows:

Because, of course, even though you say you were charged with shooting Mr Nicholls (sic), those charges were withdrawn against you, weren't they?---Yes.

At the end of all this you received a suspended sentence, didn't you?---Yes.

Where you didn't have to go to gaol at all. Is that right? ---Yes.

106 The benefit Schiller received for cooperation with police was not just a lesser sentence on the firearms charges, but the withdrawal of the charge that he caused serious injury to S.

107 The same consideration was also relevant in another way. It was reasonable for defence counsel to apprehend that, if it were put to Schiller on a separate trial of charge 1 that he had cooperated with police because he wanted a sentencing discount on the firearms charges, there was a very real risk that the response would be that Schiller cooperated with police because he did not want to be charged with, and potentially convicted of, joint participation in the second shooting. It was highly likely he would say, as he did when asked in cross-examination, what caused him to 'write about' the appellant in 2013:

I had a think about it and I'm not going to spend years behind bars for someone else's crime. You know, I've got two kids that need me and I'm not going to lose my life for someone else's actions.

108 Subsequently, he repeated that this was the key reason for his cooperation with police, when the following exchange with counsel for the appellant occurred:

That's why you're here, isn't it, to hang on to the suspended sentence that you got on 8 September last year, aren't you? --- To be honest, I'd be here regardless whether I was in prison or whether I was - you know, I - I've stated clearly I'm not doing time for someone else's crime, whether I'm in gaol or - - -

109 Next, whilst on a separate trial of charge 1 it could be put in cross-examination that Schiller received some sentencing benefit on the firearms charges as a result of giving evidence in respect of charge 1, the full nature of the sentencing benefit was inextricably bound up with his cooperation in respect of the prosecution of the appellant in respect of charge 2. Thus, the cross-examination in respect of charge 1 alone could not have been put, as it was at the trial, in part by direct reference to the course of the sentencing hearing relating to the firearms charges.

Much was made, I suggest to you, of the fact that His Honour accepted the assistance you'd provided in respect of the [S] shooting and of the other shooting. Is that right?---I don't understand that.

Well, when His Honour said, 'I accept that the assistance you are providing in respect of the [S] shooting is significant as you were a witness to that shooting.' I'm reading, sir, from His Honour's judgment when he was sentencing you?---Yes.

'You are also providing assistance in respect of a second shooting'?---Yes.

It was also said by His Honour that, 'The prosecution did acknowledge the great significance of your undertaking to assist in the prosecution of others and the prosecution acknowledged that this justified a significant discount in sentence'?---Yes.

110 The advantage obtained with respect to cooperation in respect of charge 1 could not be disaggregated from the full discount obtained for cooperation in respect of both charges 1 and 2. If it were suggested that the full discount resulted from cooperation in respect of charge 1 only, then it was likely Schiller would reject such a suggestion and, if he did not, the prosecution would have been entitled to make clear in re-examination that this was not so.

111 Similarly, if there were a separate trial on charge 1, there was an obvious difficulty in cross-examining Schiller as to why no statement concerning the alleged confession by the appellant was made until June 2013. Although counsel for the appellant submitted on the appeal that this could be achieved by way of a carefully prepared and constructed cross-examination, the practical reality is that the statement of June 2013 concerning the first shooting was made in the context of ongoing dealings with police concerning the evidence Schiller would give relating to the second shooting and the overall prospect of benefits to Schiller if he cooperated with police. The context in which the appellant's confession was first mentioned in June 2013 was inextricably bound up not just with the firearms charges, but also the dealings between police and Schiller concerning the second shooting.

112 Given the strength of the case against the appellant on charge 1, it cannot be said that a tactical decision to have the jury concentrate on the benefits that accrued to Schiller by reason of his willingness to give evidence against the appellant on both charges 1 and 2 was irrational. It involved a considerable risk. But, there would also have been risks on a separate trial of charge 1 in leaving the jury unaware of the benefit to Schiller of having had the charge of intentionally causing serious injury, for which the maximum sentence was 20 years, dropped against him in respect of the second shooting;[29] in questioning him as to what motivated him to cooperate with police; in leaving the jury unaware of the full extent of the benefit obtained in respect of the firearms sentences as a result of his cooperation in respect of both charges 1 and 2; and in failing to emphasise the lateness of the date at which Schiller told police of the appellant's alleged confession because of the difficulties in unravelling the context in which that occurred.

113 The evidence against the appellant on charge 2 was also very strong. Schiller was an eye witness to the shooting and the victim, S, also inferentially identified the appellant as the shooter. The CCTV evidence corroborated the evidence of both these witnesses.

114 As we have said, the defence case was that Schiller was the shooter. After the incident, Schiller had bragged that he was the one who had shot S. In cross-examination he admitted this but said he did so in order to look tougher and make himself more frightening to others.

115 Once again, it was essential to the defence case to discredit Schiller. There was again a basis for doing so by reference to the advantages he had received as a result of agreement to give evidence. His cooperation with the Crown had plainly resulted in the discontinuance of the intentionally cause serious injury charge against him in respect of the second shooting, the avoidance of the risk of a substantial term of imprisonment had he eventually been convicted of that charge, and in his receiving a suspended sentence on serious firearms charges. Unquestionably, those circumstances had to be exposed to the jury. But, risks were unavoidable if defence counsel sought to quarantine the case relating to the charge 2 from the case relating to the charge 1. Were any false impressions created as to the factual basis for the sentencing discount for cooperation given on the firearms offences, then it would be open to the Crown to address the matter in re-examination. Probably, even more significantly, it could not be emphasised that Schiller himself had been charged with intentionally causing serious injury in respect of S and that it was only after he implicated the appellant in the first shooting that that charge against him was dropped.

116 Given the strength of the cases in respect of charges 1 and 2, the strategic options available to defence counsel were limited. The strategy adopted was to place Schiller at the centre of both cases against the appellant, and to seek to discredit him entirely. That strategy plainly lay behind the decision not to seek severance of the two charges. As Maxwell P has pointed out, that strategy was full of risks. However, any alternative strategy was also risky. And, what was suggested by the appellant's counsel on the appeal with respect to a confined cross-examination on charge 1 in particular was also risky. First, for the reasons we have explained, it had an obvious potential to miscarry; secondly, had it been adopted, it would have been a strategy calculated to have kept from the jury what was a principal benefit that Schiller received from his cooperation with the police: the dropping of the very serious charge that the appellant then had to face; thirdly, it would not have made clear the full extent and basis of the sentencing benefit obtained by Schiller as a result of the combined effect of his cooperation with police in respect of both charges 1 and 2; fourthly, it would have materially inhibited any exploration of the reason no statement was made about the appellant's confession until June 2013.

117 In our view, it cannot be said that it was not reasonably open to make the forensic choice to have the two charges heard together and attack Schiller's credibility as a whole as the cornerstone of the defence to both charges.

Were the judge's directions to the jury adequate?

118 The appellant conceded that the directions in respect of separate consideration of the two charges followed the standard directions and that there was no exception taken by the appellant's trial counsel to the judge's charge. However, the appellant submitted that the Victorian Criminal Charge Book advises that it may be necessary to further warn about the inadmissibility of the evidence in support of one charge in consideration of the case on another charge. The appellant contended that the direction in this case was too brief and generic for the circumstances of the case. In particular, the appellant submitted that the trial judge at times did not directly identify what evidence related to which charge.

119 In the course of his charge the trial judge directed the jury that the accused was entitled to have each charge considered separately. The judge continued:

It would therefore be wrong to say that simply because you find the accused guilty or not guilty of one charge, that he must be guilty or not guilty, as the case may be, of another.

It would also be wrong if you do find the accused guilty of one of the charges, to reason that because he engaged in that misconduct, he is the kind of person who is likely to have committed any of the other charges.

Each charge must be considered separately, in light only of the evidence which applies to it. You must ask yourselves in relation to each charge, whether the evidence relating to that charge has satisfied you, beyond reasonable doubt, that the accused is guilty of that particular crime.

If the answer is yes, then you should find the accused guilty of that charge. If the answer is no, then you should find the accused not guilty of it.

120 The trial judge then gave a series of further directions including a warning concerning the need to treat Schiller's evidence with care because he was criminally concerned in the events giving rise to the proceeding and to consider the potential unreliability of Schiller's evidence in light of the fact that he had secured a sentencing benefit as a result of cooperation with investigating police.

121 At the conclusion, the judge carefully summarised the two cases before the jury. His Honour dealt with the key evidence in relation to the first charge as follows:

Now, in broad terms the prosecution says this presents as a strong case of guilt. In broad terms, the defence submit that this does not present as a strong case of guilt. In fact, there are reasonable possibilities consistent with innocence which are not excluded. The prosecution submitted that you ought go to the known facts in terms of [A].

Firstly, [A] is shot. He is shot with a shotgun. It occurs outside the accused's home. The accused is there. [A] himself tells the doctors he is shot with a shotgun. There is evidence of a blast 2 injury - evidence in terms of the wound, the clothing and the surrounds. This is all consistent with a shot from a shotgun. There is evidence from the neighbours, they hear a blast, they hear a loud bang. They see the accused hopping - I beg your pardon, they see [A] hopping and they then - two of the neighbours, as I have already said, describe acts of violence by the accused on [A] - after a loud bang.

The prosecution rely on the notes from the diary in respect of the circumstances, monies owed, there is an extortion attempt, the accused is expecting [A], the accused arms himself with a shotgun. A mate, Tommy was kidnapped or taken and the accused rushes out with a shotgun and points it at the victim.

After the event, the accused arranges for the disposal of the gun and it is submitted that this may have been what Hunter saw when he saw one of the men in the Commodore with the gun. The prosecution rely on the evidence of the nature of the blast. It's a[t] close range, about 1.5 metres. The prosecution argue that the gunshot residue results vary widely and that there are so many variables that in this instance, this does not throw light on whether the accused fired the gun or not. The prosecution argue that the accused told friends to dispose of the gun and, as I have already said, the neighbour gives a description of a pistol and maybe that that's what he is describing.

The prosecution then add into the mix the admission made by the accused Schiller that he shot [A] and the prosecution argument is that there is such detail in the admission these details could only have come from the accused. The details are consistent with what you have in the notes.

The suggestion that the accused did not fire the shot ought be rejected and the prosecution case is that it was the accused who shot [A] and, in terms of Schiller's evidence, in the [A] matter, it's put to you that he had no involvement.

The defence, the defence say that there is a reasonable inference which is consistent with innocence, namely, someone else fired the shot. The accused did not fire the shot. The defence rely on the evidence from the gunshot residue expert, Mr Wrobel, that there was no gunshot residue on the hands of the accused and there was no gunshot residue on any part of the interior of the Honda.

The defence rely on the description of what has occurred in terms of gunshot residue from a shotgun and the small amounts of gunshot residue on the accused's clothes were entirely consistent with the hypothesis that the accused was there, he was near the scene of the shooting but he was not the shooter.

In terms of the admissions allegedly made by the accused to Schiller it is submitted Schiller is entirely unreliable. These admissions are based on scuttlebutt. Schiller is motivated by a desire to save his own skin by assisting the police and, as I have already indicated to you, it was submitted that the details Schiller was able to provide may have come from the accused's own diary.

So, the defence submit that you have a circumstance where nobody sees the accused with a gun in his hands. You have the neighbour's evidence and the neighbours are observing the scene very shortly after the noise and there is a reasonable inference which is not excluded and which is consistent with innocence and only someone else fired the shot.

In terms of the second charge the Crown case on Charge 2 is that the Crown argue the accused is present. The accused enters [S]'s house with Schiller. The accused leaves with Schiller. The submission is made to you that the CCTV shows the accused carrying a hand gun. A reason for going to [S]'s house is that the accused wants money, the $300 he received was not enough and the prosecution case is that there are two eye witnesses - Schiller, who says the accused shot [S] and [S] who says it is, if you like, the fourth man, that is, the man he does not know. So, it's not Schiller, it's not Cowton and, of course, it's not himself. By a process of elimination it is therefore the accused.

The prosecution argue there is no relationship between [S] and Schiller; no collusion, they have not put their heads together and there is no explanation or rationale for them providing a false allegation, and the prosecution argue that only the accused had the gun. The bullet from that model of gun was also referred to.

Now, the defence took you to the evidence concerning the reason for Schiller and the accused attending at [S]'s home, and the defence described that evidence as a mish mash and the defence argue that you ought not believe Schiller when he gives an account of why he was attending at [S]'s home with the accused.

The defence argue that Schiller knew something was about to happen and the defence argue that Schiller, in co-operating, has effectively pulled the wool over everyone's eyes. He has assisted police. He has assisted authorities, and he is simply seeking to save his own hide. Schiller, in fact, bragged about shooting [S] after the event.

The defence argue that you have two entirely unreliable witnesses in [S] and Schiller. Each has provided a different version of the actual act of shooting. The defence argue that [S] never identified the accused and the defence point to the description [S] gave of five foot eight or nine and blonde-ish hair, as fitting Schiller.

The defence argue that Schiller set up the meeting to roll [S]. The defence argue that the accused was just a stooge. He was a sidekick to Schiller. The defence argue that Schiller's version is just an elaborate story constructed by him and that he is gilding the lily, and the defence argued that you ought reject Schiller's account of allegedly panicking as he left the house. He had the presence of mind not only to leave his fingerprints, but to drop his heads [sic]. This, the defence argue, is seen on the CCTV.

The defence argue that Schiller is entirely unreliable and he reverts to the tactic of saying, 'I don't recall', whenever he is asked awkward questions and an example of this was the questioning on the price of the Beretta.

The defence argue that Schiller is always attempting to distance himself from the dirty work, and this is what occurred on 8 January 2013, and the defence argue that Schiller, in stating that he had fired the gun recently, was telling the truth, and the defence argue that it was Schiller who fired the gun on 8 January 2013.

In any event, the defence submit to you that there is no obligation on the defence, of course, to prove who fired the gun; the onus remaining on the prosecution and they have not discharged that onus.

123 There was no exception to the judge's direction with respect to separate consideration of each charge and the evidence admissible in respect of each charge. In our view, the judge's directions to the jury were a model of clarity and there is nothing in ground 3. To say more about the way in which the jury should not reason would have carried with it real risks that the jury would be confused and distracted from the real issues in the case.

124 There is nothing in this third contention and accordingly, it must be rejected.

125 If it be necessary, we would add that, although it was argued that each of the three contentions in support of the ground of appeal was sufficient in itself for the appeal to succeed, when considered cumulatively, the three contentions were not stronger together than apart. There was no miscarriage of justice by reason of the trials for each charge being heard together.

126 In our opinion, the appeal against conviction must be dismissed.

127 Counsel for the appellant submitted that the total effective sentence imposed upon the appellant is manifestly excessive. He contended that, although the offending was serious and this seriousness was compounded by there being two offences, the sentences fixed for each offence were too high, which led to an overall total effective sentence that was too high. He also said that there was a failure to have sufficient regard to the material in mitigation.

128 Counsel for the appellant referred to Nash v The Queen,[30] in which Maxwell P outlined the matters which were routinely taken into account by sentencing judges in assessing the gravity of particular instances of intentionally causing serious injury. Counsel contended that the proven intent was that only serious injury and not more was intended (eg an intention to permanently incapacitate) as the shots were fired downwards.

129 In respect of the seriousness of the injuries caused, there were no victim impact statements from either victim and there was no evidence of permanent impairment. In the case of A, there were no pellets in the wound or bony injury, for S the injury was to the flesh of the thigh. Counsel for the appellant conceded that each of the victims were somewhat vulnerable. Counsel recognised that a weapon was used in each instance, which aggravated the objective seriousness of the offending, however he contended that the duration of the attacks were short and the appellant acted alone.

130 Counsel for the appellant referred to the table contained within Nash,[31] which he contended demonstrates that a sentence of eight years was usually reserved for serious or life-threatening offences with a degree (often high) of permanent impairment. Counsel for the appellant also referred to Warwick v The Queen,[32] where the applicant was sentenced after a trial to five years and nine months on a count of intentionally causing serious injury involving a shooting and a wound to the femur. He submitted that there was a higher culpability in that case than in each of the offences before this Court and that the injury was also more serious.

131 Counsel for the appellant submitted that, although there were no victim impact statements, medical updates or evidence of permanent injury in respect of either A or S, the sentencing judge wrongly referred to the offending as 'two of the most serious examples of intentionally cause serious injury one can imagine'.

132 Counsel for the appellant also submitted that despite there being very good plea material and evidence and the sentencing judge finding that the appellant had good prospects of rehabilitation and behaved in an exemplary manner whilst on bail, it was difficult to see how this material had any impact on the sentence.

133 In this regard, it was emphasised that the offending occurred in the context of drug addiction and that, since his arrest and remand, the appellant had turned his life around. He enjoyed good support from his family and friends and had demonstrated the capacity to engage positively with the wider community.

134 In Veen v The Queen[33] and Veen v The Queen [No. 2],[34] the High Court emphasised the significance of proportionality in sentencing. In the latter case, Mason CJ, Brennan, Dawson and Toohey JJ said:

The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No.1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender...[35]

135 In the present case, the appellant was convicted of two charges after trial by jury. There was no evidence of remorse or of other matters relating to the offending that might be conducive to a discount on sentence.

136 Second, each of the offences was of the same general character and severity. There was no error in their having been assessed as of equal gravity. Upon the appellant's conviction on the first charge, he became a 'serious offender' for the purposes of pt 2A of the Sentencing Act 1991. Pursuant to s 6E, the sentences were to be served cumulatively unless the Court otherwise directed.

137 Third, both offences involved the use of a firearm. While the offence of intentionally causing serious injury does not require the use of firearms and may occur where the feet or fists are used, and, where firearms are used, it is less dangerous to aim at the legs rather than the chest, the fact that firearms were used at close range necessarily places this type of offending in the higher range of seriousness.

138 Fourth, the offences occurred within seven months of each other. There is a need for specific deterrence. The appellant needs to learn that his readiness to use firearms to solve his problems is not acceptable.

139 Fifth, the appellant has relevant prior offences: (a) in 2012, he was convicted of assault and recklessly causing injury for which he received a 12 month CCO without conviction; and (b) in 2008, he was fined with conviction for a possessing prohibited weapon. The present offending was a breach of the CCO.

140 Sixth, the present sentence must reflect a measure of general deterrence. Whilst it must not exceed that which is proportionate to the offending, the community should be left in no doubt that the use of firearms to resolve disputes is wholly unacceptable and will be severely punished.

141 Seventh, the nature of the offending raises a real issue of protection of the community. Section 6D of the Sentencing Act 1991 requires that to be the principal purpose of the penalty imposed on charge 2. Although, as the sentencing judge recorded,[36] he did not consider it necessary to impose a disproportionate sentence.

142 In the circumstances, and despite the matters personal to the appellant which were urged at the plea and on the appeal, it is not possible to say that the sentences imposed upon the appellant are manifestly excessive.

[1] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 133 [27] ('TKWJ'); James v The Queen [2013] VSCA 55; (2013) 39 VR 149, 156 [14]; Knowles (a Pseudonym) v The Queen [2015] VSCA 141 [131]-[134].

[2] TKJW [2002] HCA 46; (2002) 212 CLR 124, 135 [33].

[4] [2002] HCA 46; (2002) 212 CLR 124, 135 [33] (emphasis added).

[5] See DPP v Lamb (a pseudonym) [2015] VSCA 307 [36]-[38].

[6] Interpretation of Legislation Act 1984 s 36(2).

[7] [1986] HCA 65; (1987) 61 ALJR 1.

[8] Section 585 provided that, except as thereinafter stated, an indictment must charge one offence only, and not two or more offences, but contained a proviso to the effect (inter alia) that 'when several distinct indictable offences form or are a part of a series of offences of the same or a similar character ... charges of such distinct offences may be joined in the same indictment against the same person'.

[9] [1986] HCA 65; (1987) 61 ALJR 1, 9 (emphasis added) (citations omitted).

[10] [2015] VSCA 307 [29] (Priest, Beach and Kaye JJA).

[11] [1999] VSCA 123; [1999] 3 VR 366.

[12] Ibid 373-4 [24]-[26] (citations omitted).

[13] [1986] HCA 65; (1987) 61 ALJR 1, 9.

[14] [1984] HCA 5; (1984) 152 CLR 528, 541-2 ('Sutton'). In Sutton, what Brennan J said was obiter: the Court decided in that case that the evidence on the one charge was admissible on the other. However, in De Jesus v The Queen [1986] HCA 65; (1987) 61 ALJR 1, Gibbs CJ adopted (at 8) what Brennan J had said in Sutton as a correct statement of the law. In the present case, the Crown did not contend that the evidence on one charge was admissible on the other.

[15] [1986] HCA 65; (1987) 61 ALJR 1, 3 (emphasis added) (citations omitted).

[16] (1990) 19 NSWLR 677, 685.

[17] [2002] HCA 46; (2002) 212 CLR 124, 130-1 [16]-[17].

[18] Ibid 134-5 [31]-[33] (emphasis added) (citations omitted).

[19] [2006] HCA 9; (2006) 80 ALJR 614, 618-9 [9].

[22] [2012] HCA 29; (2012) 247 CLR 531, 562-3 [114] ('Patel') (citations omitted).

[23] [2013] VSCA 55; (2013) 39 VR 149.

[24] Ibid 152 [4]. The above analysis of the authorities draws greatly upon the treatment in Bass (a pseudonym) v The Queen [2014] VSCA 350 [113]-[121] (Maxwell P, Weinberg and Santamaria JJA).

[25] See [67] above. In his opening address to the jury, appellant's counsel told the jury that the two matters were being heard together because there was an overlap in relation to some of the witnesses.

[26] Cf TKJW v The Queen [2002] HCA 46; (2002) 212 CLR 124, 150 [81] (McHugh J).

[27] The evidence was that the notebook had been discovered by police on 26 April 2013 when they were executing a search warrant. The contents of the notebook were admitted into evidence without objection as Exhibit 6.

[28] He accepted in cross-examination that he had been previously convicted of (1) recklessly causing serious injury; (2) assault; (3) threatening to kill; (4) threatening to inflict serious injury; (5) threatening words and obscene language; (6) contravening family violence intervention orders; (7) receiving stolen goods; and (8) possessing firearms while unlicensed.

[29] Crimes Act 1958 s 16.

[30] (2013) 40 VR 134 ('Nash').

[31] (2013) 40 VR 134.

[32] [2014] VSCA 114.

[33] [1979] HCA 7; (1979) 143 CLR 458, 467, 468, 478, 495.

[34] [1988] HCA 14; (1988) 164 CLR 465.

[36] DPP v Nicholls (Unreported, County Court of Victoria, Judge Coish, 23 March 2015) [67].