• Theft of firearm (pump action single barrel shotgun), s 74AA(1) Crimes Act 1958

• Theft of firearm (Mossberg air rifle), s 74AA(1) Crimes Act 1958

• Theft of firearm (Winchester .22 calibre rifle), s 74AA(1) Crimes Act 1958

• Theft of firearm (Bettinsoli 12 gauge double barrel shotgun), s 74AA(1) Crimes Act 1958

• Theft (jewellery, cash, documents, hard drive), s 74 Crimes Act 1958

• 6AAA on charge 1 is 12 months' imprisonment and summary offences is aggregate of 6 months' imprisonment; licence cancelled and disqualified 3 months from date of sentence

1. The applicant sought leave to appeal on two grounds, namely:

Ground 1: The trial miscarried by reason of:

(a) the prosecutor foreshadowing in her opening evidence that was not subsequently adduced in the trial; and

(b) the admission of evidence with no probative value or scant probative value that was outweighed by its prejudicial effect; and

(c) the admission of evidence the sole potential relevance of which was to support incriminating conduct reasoning in circumstances where the judge had not determined that that evidence was capable of being viewed by the jury as evidence of incriminating conduct in proof of any charge the jury had to determine.

Ground 2: The trial miscarried by reason of the judge:

(a) expanding the prosecution case to encompass liability as an involved rather than principal offender; and

(b) failing to provide procedural fairness by giving proper notice of the complicity directions he intended to give; and

(c) giving erroneous and inadequate directions as to liability as an involved party.

1. At the conclusion of oral submissions, the Court determined that the application for leave to appeal should be granted, the appeal allowed, the convictions of the applicant on charges 2, 4, 5 and 7 be set aside, and that there be a retrial of those charges. The following are our reasons for that conclusion.

1. The burglary, that was the subject of charge 2, and the thefts, that were the subject of charges 3 to 7, were committed at the home of Frank and Nancy Mammone at 5 Fox Court, Shepparton in the early hours of 19 October 2021. In 2004, the applicant married Rita Mammone, who is the daughter of Frank and Nancy Mammone. The applicant and Rita Mammone subsequently separated in acrimonious circumstances in 2018.
2. Between 13 October and 14 October 2021, a Mitsubishi Express van registered SGM‑495, belonging to Grosvenor Engineering Group, was stolen from outside that company's address in Longstaff Street, Shepparton. That vehicle was the subject of charge 1, to which the applicant pleaded guilty.
3. Between 17 October 2021 and 21 October 2021, Frank and Nancy Mammone left their home at 5 Fox Court, Shepparton and travelled to Melbourne to visit family. During that period, no other person was residing at their premises.
4. In the early hours of Tuesday 19 October 2021, the applicant was observed on CCTV at a Petrogas service station at 4 Industrial Road, Shepparton. He filled the stolen van with petrol. Use of his debit card showed that the purchase was made at 3:24 am. At that time, the applicant was disqualified from driving (related summary offence 9).
5. Subsequently, CCTV at APCO service station at 111-125 Numurkah Road, Shepparton, captured the applicant withdrawing money from the ATM using his NAB debit card, and then purchasing assorted food items with cash. His use of the debit card showed that the purchase was made at 3:51 am on 19 October 2021.
6. Between 3:30 am and 4:00 am on 19 October 2021, the mains power at the premises of Frank and Nancy Mammone at 5 Fox Court, Shepparton, was switched off. The prosecution case was that during that time, and at about 4:00 am, the applicant attended at the premises, broke into them and stole the items that were the subject of charges 3 to 7 on the indictment.
7. Specifically, it was alleged that the applicant stood on top of a dog statue and removed the flywire to the sunroom to the premises, slid open the window, and climbed over the fridge that was in front of the window. The applicant's palmprints were subsequently located on the top of the fridge. It was alleged that the applicant then forced open the laundry door at the rear of the dwelling by smashing a hole in the wooden door. Once inside the premises, the applicant rummaged through the three bedrooms, and stole two firearms in the master bedroom, namely, a pump-action 12-gauge shotgun (charge 3), and a Bettinsoli 12-gauge double barrel shotgun (charge 6). The applicant also was alleged to have stolen jewellery belonging to Nancy Mammone, cash totalling about $500, documents and a hard drive, which items were the subject of charge 7. Those items were stolen from the master bedroom and also the study. In addition, it was alleged that the applicant stole two further firearms from a shed at the rear of the premises, namely, a Mossberg air rifle (charge 4) and a Winchester .22 calibre rifle (charge 5).
8. At approximately 7:40 am on 19 October 2021, Judith Lang, a resident of Fox Court, observed an unknown male (who was not the applicant) wearing a hoodie exit the driver's seat of a utility vehicle parked outside 9 Fox Court, walk up the driveway of 5 Fox Court, and return to his vehicle a couple of minutes later.
9. At approximately 2:00 pm on the same date, Peter Gramson, a neighbour of Mr and Mrs Mammone, brought in their rubbish bin. He observed that the door to the power box of the house was open. He closed the door and assumed it had blown open.
10. The prosecution alleged that, following the burglary, the applicant on the morning of 19 October 2021 drove to Reedy Swamp in North Shepparton, where he wrapped the air rifle (charge 4) and the Winchester firearm (charge 5) in a black jacket, and the ammunition in a light coloured rag, and then wrapped all those items in grey coloured duct tape. The applicant was then alleged to have hidden the firearms and ammunition under a fallen log in the long grass in Reedy Swamp near the Goulburn River on Gemmill Swamp Road.
11. Subsequently, at approximately 2:20 pm on 19 October 2021, Mr Sid McNeil located the two firearms at the swamp and contacted police.
12. In the meantime, it is alleged that the applicant drove to Numurkah, where he gave the pump-action firearm (charge 3) and the 12-gauge double barrel shotgun (charge 6) to an associate.
13. At 2:50 am on 20 October 2021, CCTV from the Petrogas service station in Industrial Drive, Shepparton, depicted the applicant putting petrol into the stolen Mitsubishi van. At that time, the roof racks had been removed from the van and its rear windows had been painted.
14. On 21 October, at 7:40 am, Peter Gramson observed an unknown male (not the applicant), who was young, skinny and about 6 feet tall, walk up the driveway of 5 Fox Court. Mr Gramson spoke to the male, who then drove away in a dual-cab utility vehicle. Mr Gramson telephoned police and asked them to attend.
15. When police arrived, they confirmed that the premises had been broken into. Police obtained palmprints from the top of the freezer that was adjacent to the window on the inside of the sunroom. As we have noted, those prints were subsequently matched to those of the applicant. It was further noted that the entrance was marked in a manner consistent with having been opened by a jemmy bar. A jemmy bar, with the DNA of the applicant on it, was located on the bed in the master bedroom. The lock of a wooden cupboard in the rear shed had been broken and the two firearms, that were subsequently recovered at Reedy Swamp, had been removed from it. The jewellery and money had been taken from the master bedroom, and the documents and CCTV hard drive from the study (charge 7, theft).
16. On 27 October 2021, members of the Shepparton uniform branch, who were in a marked divisional van, noticed the applicant driving the stolen Mitsubishi van south on Packham Street in Shepparton. The applicant subsequently purchased a can of red spray paint and used it to paint the entire van red. He also created a white Australia Post sign which he affixed to the back left side of it.
17. Subsequently, at 12 noon on 28 October 2021, police observed the stolen van parked in a car park in Shepparton. Investigators waited near the vehicle for the applicant to return to it from inside the shopping complex. At approximately 12:12 pm, the applicant called the emergency number 000 using his mobile telephone, and told the call taker that he had sighted four males undertaking a drug deal at the intersection of River Road and Grant Court in Cobram. The applicant stated that he had sighted one of the males holding a shotgun. The prosecution case was that the applicant had seen the police who were waiting for him, and he made the 000 call as a deliberate attempt to divert police away from the van.
18. At 12:35 pm on 28 October 2021, investigators from the Shepparton and Cobram Crime Investigation Units located the applicant sitting on the ground on Main Street, Cobram near the Cobram cinema. The applicant was arrested and cautioned.
19. Subsequently, police monitored the applicant's telephone calls that he made from custody. In the course of that monitoring, the applicant was heard to admit to his mother that he had made the hoax call to 000 for the purpose of avoiding apprehension by police.
20. At the second trial, the defence case was that the applicant did not commit the burglary and the thefts, other than he admitted theft of the Mitsubishi van. It was contended that there had not been enough time for the applicant to proceed from the APCO service station in Numurkah Road, Shepparton to 5 Fox Court, Shepparton, in order to turn off the electrical power box at those premises before 4:00 am. The defence contended that the prints on the freezer might have been placed there before the burglary, and that the biological material on the jemmy bar might have been deposited from previous innocent use by him, or transferred onto the jemmy bar from another deposit within the house. The defence contended that it could not be excluded that the other persons cited, with apparently nefarious purpose, at 5 Fox Court on 19 October and 21 October 2021, might have been responsible for the burglary.

1. In view of the issues raised by the grounds of appeal, it is not necessary to summarise the evidence in detail. It is sufficient to set out, in short form, the structure of the prosecution case, in order to provide appropriate context for the two grounds relied on.
2. Frank Mammone and Nancy Mammone each gave evidence as to the background circumstances, including the applicant's marriage to their daughter, Rita, and their visit to Melbourne between 17 October and 21 October 2021. Mr Mammone related how he received a telephone call on 21 October notifying him of the burglary at the premises, as a result of which he and his wife then returned to Shepparton. Mr Mammone described his observations on their return home. He described how the intruder had entered through the door into the sunroom, and then managed to unlock the security door. He also noted that the freezer and fridge had been pushed away from the wall, and that the lock on the security door had been jemmied off. Frank Mammone and Nancy Mammone had described the nature of the items that had been stolen by the intruder. They confirmed that before the applicant had separated from their daughter Rita, the applicant had frequently visited their home. However, he had not done so after their relationship terminated.
3. In her evidence, Ms Nancy Mammone also described her observations on their return to the premises on 21 October. She described how she was always meticulous about cleaning the premises, and that she had frequently cleaned the fridge and freezer that was in the sunroom.
4. Rita Mammone gave short evidence concerning her relationship with the applicant. She was aware that after she had returned to live with her parents when her marriage with the applicant failed, her parents had installed CCTV at the home.
5. Evidence was then led as to observations made by three neighbours of the events of 19 October. Judith Lang, who was living in Fox Court, Shepparton in October 2021, gave evidence that at about 7:30 am on 19 October, she had observed a motor vehicle park in Fox Court with its headlights on. She observed a man exit the vehicle and walk up the driveway of the premises at number 5 Fox Court. A couple of minutes later, she saw him return and go back to his vehicle where he drove off. She said that the man was wearing a hoodie, and that he was at all times on his mobile telephone.
6. Peter Gramson was also living in premises in Fox Court in 2021. He said that on 19 October 2021, after he returned home at 2:00 pm, he took his own rubbish bins back into his premises, and then took the rubbish bins of Frank and Nancy Mammone into their premises, as he knew that they were then away. When he did so he observed that the door on the power box was open, and he assumed that it had blown open. He closed the door and left. A couple of days later (on 21 October), Mr Gramson saw a young man walking up the driveway of the premises at 5 Fox Court. Mr Gramson confronted him and asked him what he was doing. The man replied that he was 'going to pick up a mate'. Mr Gramson described the man as being skinny, perhaps 6 feet tall, with brown hair. As he had become suspicious, Mr Gramson walked around Mr Mammone's house. He noticed that the flywire screen on one of the windows had been removed and that the back security door was ajar. Accordingly, he telephoned the emergency number 000.
7. At the first trial, Mr John Dickson gave evidence concerning the theft of the Mitsubishi van. On the second trial, his evidence was not adduced before the jury. However, the content of it was summarised in an agreed statement of facts. In essence, Mr Dickson stated that he was a manager of a business in Longstaff Street, Shepparton. The agreed facts further stated that between 13 and 14 October 2021, one of the work vans belonging to the business, namely, a 2003 white Mitsubishi Express van, which had been parked outside the business, was stolen overnight.
8. The balance of the prosecution case comprised police and forensic evidence.
9. Constable Marko Mitic, of the Shepparton Divisional Tasking Unit, gave evidence that on 19 October 2021, in company with Senior Constable Steven Burke, he was directed to attend Reedy Swamp in relation to firearms which had been found there. Constable Mitic gave evidence as to how they attended at the swamp, observed the firearms which were then covered in cloth and contained in a package, and transported them to the property office, where he liaised with Leading Senior Constable Stewart Lowe.
10. Constable Amy Williams was stationed at Shepparton Police Station. On 21 October 2021, she received a communication at 7:47 am in response to a 000 call that had been made that morning. As a consequence, Constable Williams then attended at the premises at 5 Fox Court with Constable Kayla Warwick. On their arrival, the security door was open. There was a hole in the door that led into the house. Constable Williams also described her observations as to the state of the premises inside it.
11. Leading Senior Constable Stewart Lowe was attached to the Shepparton Crime Scene Services. On 19 October 2021, Senior Constable Mitic conveyed to him the two firearms that had been located at Reedy Swamp, namely, a Winchester single shot .22 rifle and a Chinese branded air rifle. There were also shotgun shells and .22 bullets in the package in which they were contained.
12. On 21 October, Senior Constable Lowe and Leading Senior Constable Deborah Williams attended the premises at 5 Fox Court. Senior Constable Lowe noted that a dog statue had been placed under the sunroom window, and that the flywire screen had been removed from that window. It appeared that the offender had climbed through the window. On the other side of it was a fridge. Senior Constable Lowe conducted a fingerprint examination of the window and the flywire screen. He noticed that there were hand marks on top of the fridge, and he used a powder to develop latent prints from the marks. Senior Constable Lowe also observed that there was a hole in the rear laundry door, which appeared to have been created by a jemmy bar, as there were jemmy bar marks evident around the edges of it. Senior Constable Lowe located a jemmy bar on the bed in the master bedroom. It was conveyed back to the police station to undergo further examination.
13. Leading Senior Constable Deborah Williams gave evidence, which, in effect, corroborated the evidence given by Leading Senior Constable Lowe.
14. The next two witnesses gave evidence concerning forensic examination of relevant items.
15. Robert Skbor, a fingerprint expert employed by the forensic services department of Victoria Police, gave evidence that matched the palmprints on the freezer at the premises at 5 Fox Court with the sample fingerprint obtained from the applicant.
16. Kate Mosse, a forensic officer of the Victoria Police Forensic Services Department, gave evidence that in effect matched the DNA extracted from the jemmy bar with that of the applicant. Ms Mosse's evidence was that a partial mixed DNA profile of three contributors was obtained from the swabs taken from the jemmy bar. The DNA evidence was 100 billion times more likely if the applicant was a contributor to that mixture than if he was not. In scientific terms, Ms Mosse concluded that that ratio provided 'extremely strong support' that the applicant was a contributor to the DNA mixture extracted from the jemmy bar.
17. The remaining two witnesses were police witnesses. Detective Senior Constable Charles Ryall described the circumstances in which the applicant was arrested on 28 October 2021. Senior Constable Ryall, who was patrolling the Cobram CBD in company with Senior Constable Armstrong, observed the very distinctive red Mitsubishi van, with white sign writing of AusPost, in the IGA car park area. Senior Constable Ryall then received information that the applicant was seated outside a cinema nearby. Senior Constable Ryall and Senior Constable Armstrong proceeded to that location and arrested the applicant, who was then sitting in the entrance to the cinema.
18. The final prosecution witness was the Informant, Detective Acting Sergeant Luke Arrowsmith of the Benalla Crime Investigation Unit. Detective Arrowsmith gave evidence that when he attended the premises at 5 Fox Court on 21 October 2021, Rita Portea nominated the applicant as a potential person of interest. Ms Portea provided to Detective Arrowsmith the bank statements of a joint bank account held by herself and the applicant. As a consequence, Detective Arrowsmith attended the Petrogas service station in Industrial Road, Shepparton, and the APCO service station in Numurkah Road, Shepparton, and was able to obtain the evidence that demonstrated that the applicant had attended those two service stations at 3:24 am and 3:47 am respectively on 19 October 2021. Detective Arrowsmith stated that the APCO service station was 5.7 km from the house of Mr and Mrs Mammone in Fox Court, Shepparton, and that the distance between the Petrogas service station and those premises was approximately 5 km to 7 km.
19. Detective Arrowsmith obtained CCTV footage evidencing the applicant's attendances at those two premises on 19 October, and also footage of his attendance at the Cobram BP service station on 27 October. He said that each occasion on which the Mitsubishi van was depicted on CCTV, its appearance had been changed. In the first footage, at the Petrogas station, the van was almost in its original condition. The next occasion on which it was captured - which was on 20 October 2021 at another service station - the roof racks had been removed and the windows painted white. Finally, when the van was captured at the Cobram BP station on 27 October, it had been painted red and an AusPost logo was on the passenger door.
20. Detective Arrowsmith confirmed the evidence concerning a sighting of a van, matching the description of the stolen Mitsubishi van, in Cobram on 27 October 2021. As a consequence, Detective Arrowsmith contacted the Cobram Criminal Investigation Unit. The applicant was arrested by Detective Ryall on the following day.
21. Detective Arrowsmith then gave evidence of a 000 recording of a telephone call made by the applicant at 12:12 pm on 28 October 2021, which he readily determined was a hoax call by the applicant. Accordingly, Detective Arrowsmith instructed police members not to leave the Mitsubishi van. Finally, Detective Arrowsmith stated that apart from the .22 calibre rifle and the air rifle that were located at Reedy Swamp, none of the other items that were stolen from the premises at Fox Court have been recovered.
22. The applicant gave evidence at the first trial, but, on the second trial, he did not do so. His father, Sam Portea, gave evidence on his behalf. Mr Portea said that when the applicant and Rita Mammone separated, the latter took possession of most of the furniture and other items, including the refrigerator and freezer. At the time the freezer was in quite good condition. The applicant and Mr Portea moved the freezer outside the garage in which it was then housed. In doing so, the applicant tilted the freezer forward, then tilted it back in place, and wheeled it to the front of Mr Portea's premises.

1. Counsel for the applicant commenced submissions, in support of ground 1, by noting that, at the first trial, counsel then appearing for the applicant sought severance of charge 1 (theft of the motor vehicle) on the basis that it was not related to the other charges on the indictment. The judge refused the application, and considered that any prejudice occasioned to the applicant could be adequately addressed by an appropriate direction to the jury. Counsel further noted that at the first trial the defence had taken issue with the prosecution notice of incriminating conduct. The judge observed that he considered that the objection was appropriate, and his Honour upheld the submission that the incriminating conduct could only be used in proof of charge 1 (theft of the motor vehicle).
2. At the second trial, the applicant pleaded guilty, in the presence of the jury panel, to the theft of a motor vehicle (charge 1). Nevertheless, in opening the case, the prosecutor referred to conduct that had previously been relied on, in the first trial, as proof of incriminating conduct in respect of that charge. That conduct included the following: on 27 October, driving off at a fast rate of speed to evade police who were seeking to intercept his vehicle; painting the van to make it appear to be an Australia Post vehicle; the hoax call to 000 on 28 October in order to divert a police stakeout of the van; further alterations to the appearance of the van (removing the roof racks, and painting the windows of the vehicle); a monitored call from within custody a month after the applicant's remand, in which he admitted to making the hoax call for the purpose of evading police; and text messages by the applicant concerning the offending.
3. Counsel further noted that on the third day of the trial, the prosecutor abandoned resort to incriminating conduct reasoning. On the following day, the prosecutor stated that she did not intend to adduce evidence of the incident in which the applicant drove off at a fast rate of speed to avoid apprehension, or evidence of the further alterations to the appearance of the van and the text messages by the applicant about the offending.
4. Nevertheless, counsel for the applicant noted, the prosecution still adduced evidence in proof of the theft of the motor vehicle charge (charge 1), which would only be relevant in support of incriminating conduct reasoning in respect of that charge. That evidence included: the evidence of John Dickson that the van had been stolen; the evidence of the alterations by the applicant to the appearance of the van; the evidence of the hoax call; and the evidence of the call from prison admitting the hoax call.
5. Counsel noted that at the trial defence counsel objected to the admissibility of some of that evidence as being irrelevant, but nevertheless, the hoax call and the prison phone call, admitting the hoax call, were played to the jury. In her closing address, the prosecutor invited the jury to rely on the hoax call to reason that the applicant had been endeavouring to divert the attention of police from his 'own activities in the vicinity'. On this application, counsel submitted that that proposition was capable of being understood by the jury as an invitation to reason that the applicant was seeking to divert police, because he knew he had committed the burglary and thefts.
6. Counsel noted that the trial judge did direct the jury that the fact that the applicant stole the van, evaded police, changed the appearance of the van, and made the hoax call, were not relevant to the charges which the jury was required to determine. The judge also directed the jury that it must not take the applicant's plea of guilty to charge 1 into account in determining other charges. However, counsel submitted that, for three reasons, the directions given by the judge to the jury, to that effect, were insufficient to ensure that the jury did not inappropriately take into account the evidence, that was solely relevant to the charge of the theft of the van, in determining the question of the applicant's guilt on the remaining charges.
7. First, it was submitted, the directions by the judge to the jury were not specified by his Honour to be directions of law with which the jury must comply; rather, they might have been understood by the jury as comments by his Honour on the facts. Counsel submitted that the statement by the judge, as to the relevance (or irrelevance) of evidence, was not equivalent to a direction (which it was submitted should have been given) prohibiting the impermissible incriminating conduct reasoning.
8. Secondly, counsel submitted, the judge did not instruct the jury that it could not, as the prosecutor had invited, rely on the hoax call by the applicant to reason that the applicant had been attempting to divert police because he knew that he had committed the offences that were the subject of charges 2 to 7.
9. Thirdly, and in any event, it was submitted that no direction could have saved the trial from being a miscarriage of justice. It was contended that the irrelevant conduct, adduced in evidence, might have induced the jury to reason that the applicant was the type of person who would commit a burglary and thefts on the property of his estranged parents-in-law. In that respect, counsel noted that the judge did not give to the jury a direction that it must not engage in such propensity reasoning. Accordingly, it was submitted that the evidence, and the reliance on it by the prosecutor, has occasioned a substantial miscarriage of justice.
10. In response, counsel for the respondent, quite properly, accepted that the evidence, that was the subject of ground 1, should not have been adduced in the trial. Counsel for the respondent noted that before the commencement of the second trial, the prosecution provided the applicant's counsel and the Court with an amended copy of the summary of prosecution opening. Despite the fact that the defence counsel knew that the applicant would plead guilty to charge 1 (theft of the motor vehicle), he did not raise any issue concerning the content of the proposed opening. Counsel noted that the prosecutor opened in conformity with the document that he provided to defence counsel and no exception was taken to that opening.
11. Counsel noted that on the third day of the trial the prosecutor observed that the incriminating conduct notice had 'fallen by the wayside' as a result of the plea of guilty by the applicant to charge 1. At the commencement of the trial on the fourth day, the applicant's counsel indicated that the applicant would also plead guilty to the related summary charges. The prosecutor acknowledged that she had opened on matters that would no longer be the subject of evidence, and the judge suggested that the matter should be 'let go to the keeper'. The applicant's counsel did not contend to the contrary. The prosecution opening had contained references to the text messages located on the applicant's telephone, that ultimately were not the subject of evidence. However, consistent with the judge's suggestion, the messages were not referred to again during the trial. During his charge, the judge reminded the jury that it must determine the case based only on the evidence.
12. Counsel for the respondent submitted that the plea by the applicant of guilty to charge 1, and the circumstances of the theft, were before the jury as a result of decisions made by the applicant's counsel at trial. Evidence of various changes to the vehicle's appearance was adduced as part of the narrative of the investigation, which explained the circumstances in which the applicant was apprehended in Cobram. While the probative value of that evidence was slight, it was of little prejudicial effect, and any prejudice occasioned by it was sufficiently alleviated by directions given by the judge.
13. Counsel for the respondent further noted that the hoax call made by the applicant, and the Arunta call on 19 November 2021 in which the applicant admitted making that hoax call, was admitted into evidence following argument, on the basis that the hoax call had been opened by the prosecutor without objection. The prosecutor had submitted that the call was not adduced as incriminating conduct, but as part of a chronology of the events that occurred. Counsel noted that the prosecutor did not invite the jury to reason that, if it was satisfied the applicant made the hoax call, he did so because he believed himself to be guilty of the burglary charges.
14. The principal submission by counsel for the respondent, in oral submissions, was to the effect that while the evidence, that is the subject of ground 1, ought not to have been adduced in the trial, nevertheless the direction given by the judge to the jury, that it should not take that evidence into account in determining the remaining charges on the indictment, was sufficient to address any unfair prejudice occasioned to the applicant by reason of that evidence being introduced in the trial. In that respect, counsel for the respondent noted that defence counsel did not make any objection, or take an exception to the direction given by the judge to the jury that it should disregard those items of evidence. Nor did defence counsel seek any further directions from the judge on that matter.

1. It is quite apparent that evidence was adduced, and matters were put to the jury, which were not relevant to charges 2 to 7 on the indictment, and which had the capacity to adversely affect the applicant's right to a fair trial on those charges.
2. It is also apparent that the matters, that are the subject of ground 1, arose from, and were substantially the result of, the decision of the applicant to plead guilty to charge 1 on the empanelment of the jury in the trial. The theft of the Mitsubishi van, and the evidence in proof of that offence, were not relevant to the proof of any of the offences that were the subject of charges 2 to 7 on the indictment. It was for that reason that application was made, before the judge in the first trial, to sever charge 1 on the indictment.
3. It was not suggested, in this application, that the applicant derived any particular tactical or other advantage by pleading guilty to charge 1 on the empanelment of the jury. If he had pleaded guilty before empanelment, and in the absence of the panel, that charge, and the circumstances of it, would not have been relevant to the jury's consideration of the other charges. If, and to the extent that, the applicant's use of the van in the days that followed the burglary was relevant, that fact could have been the subject of an appropriate admission at trial without any reference to the impugned evidence that is the subject of ground 1.
4. Further, it is apparent that, following the applicant's guilty plea to charge 1, neither the prosecution nor defence counsel gave any consideration to the question whether a number of matters of evidence, that were the subject of the notice of incriminating conduct, would be admissible in the trial of the remaining charges on the indictment. Rather, each of those matters were referred to by the prosecutor in her opening to the jury.
5. Specifically, the prosecutor opened each of the following matters:

(1) On 27 October 2021, after a member of the Shepparton uniform branch took up a position behind the stolen vehicle, the applicant drove off at a fast speed and failed to stop.

(2) Following the theft of the van, the applicant took steps to disguise it. He purchased a can of red spray paint and sprayed the entire van red, and made a white Australia Post sign which he fixed to the back side of it.

(3) On 28 October 2021, when members of the Cobram Crime Investigation Unit observed the stolen van parked behind the IGA premises, the applicant made the hoax call to 000 in order to attempt to draw police away from the van. Subsequently, police monitored several of the applicant's telephone calls made from custody in which he admitted to placing the hoax telephone call in order to avoid apprehension by police.

(4) Police investigators had identified a number of text messages on the applicant's telephone relating to the offending. In those messages the applicant described how he had sought to evade police on 27 October. In one of the messages he asked for 'Nathan' to destroy some incriminating matters.

1. Each of those four matters were expressly foreshadowed in the written opening filed by the prosecution before the trial. Thus, defence counsel was plainly on notice that those matters would be sought to be adduced. Each of the four matters, that were referred to in the opening, were only relevant to, and probative of, the offence that was the subject of charge 1, to which the applicant had pleaded guilty. Counsel for the applicant did not, either before the opening before the jury, or after it, make any suggestion, or objection, concerning the reference to those matters in the prosecutor's opening.
2. Subsequently, on the third day of the trial, the prosecutor informed the Court (in the absence of the jury) that the incriminating conduct, referred to in the notice, had become irrelevant as a result of the plea of guilty by the applicant to charge 1, because each of the matters in the notice of incriminating conduct was only relevant to the issue of the theft of the van. The judge observed that it would be necessary to fashion a direction to the jury to the effect that because the applicant conducted himself in the manner described in the notice, that did not mean that he was guilty of the offences in question. Relevantly, at that point, counsel for the applicant did not suggest that any other steps should be taken, including discharge of the jury.
3. Notwithstanding that concession by the prosecution, evidence was subsequently adduced before the jury which would only have been relevant to charge 1. First, by the agreement of the parties, the evidence of Mr Dickson was reduced to a statement of agreed facts, which was read to the jury, concerning the theft of the Mitsubishi van. Secondly the informant, Detective Sergeant Arrowsmith, gave evidence as to the changes in appearance in the Mitsubishi van as depicted on CCTV footage. Thirdly, Detective Arrowsmith gave evidence concerning the hoax call made by the applicant to emergency number 000 on 28 October 2021. The recording of the telephone call to the applicant made to his mother on 19 November 2021, and in which he admitted to making the hoax call, was tendered in evidence as an exhibit in the trial. Further, in final address the prosecutor made specific reference to the hoax call and submitted that that call was an attempt by the applicant ' ... to divert the attention of police from his own activities in the vicinity and allow him to get away ...'.
4. In the course of the evidence being adduced from Detective Arrowsmith, counsel for the applicant did object at the point at which Detective Arrowsmith commenced to describe how, on 27 October 2021, the applicant had evaded members of the Shepparton uniformed force when the police attempted to intercept him. As a result of that objection, Detective Arrowsmith desisted from further describing the circumstances and manner in which the applicant sought to evade police apprehension. However, counsel for the applicant did not, at that point, or at any other point, object to the evidence that had been adduced concerning the changes to the appearance of the van, and the hoax call by the applicant to police on 28 October.
5. Evidence was not ultimately adduced concerning the text messages, which the prosecutor had referred to and read to the jury in the course of her opening. As counsel for the applicant has noted, the messages were couched in terms which would have conveyed the impression to the jury that the applicant was conversant with a criminal subculture. In the course of the messages he referred to someone who had 'lagged', he mentioned evading the police, and he suggested that an acquaintance be asked to destroy relevant evidence. The texts were expressed in terms of a person who was familiar with police procedure. The applicant spoke about there being an expectation that police had 'shit' on him which he would not be able to 'fight'. He said that he did not wish to go to jail until he had first seen his children.
6. The text messages were read to the jury in the course of the prosecutor's reasonably brief opening at the commencement of the trial. The trial itself only lasted six sitting days, and it might fairly be expected that the jury would have recalled, at least in part, the substance of the text messages that had been read to them by the prosecutor.
7. The judge sought to allay the prejudice occasioned to the applicant by giving directions to the jury that it must not take those matters into account in determining the guilt of the applicant on the charges before it. In the course of his charge, the judge directed the jury that the applicant's guilty plea to charge 1 was not relevant, and could not be taken into account or used in the jury's consideration of the other charges. The judge further directed the jury that the evidence that the applicant had evaded the police and disguised the van, was not relevant to the charges before the jury. His Honour stated:

He knew he had stolen the van, so running from the police and disguising the van could only be relevant to him knowing that he'd stolen the van, that is to charge 1. It cannot be used by you in determining whether the prosecution had proven that he was guilty in relation to charges 2 and 7.

1. The judge also directed the jury that the hoax call, that the applicant made to 000 on 28 October 2021, was only relevant to demonstrate that the applicant wanted to distract the police because he had stolen the van, and that the hoax call was not relevant to whether the applicant committed the offences that were the subject of charges 2 to 7.
2. In determining ground 1, the critical question is whether the directions, so given by the judge to the jury, were sufficient to offset the unfair prejudice occasioned to the applicant by reason of the adducing of evidence, and references in the prosecution opening, relating to matters that were not admissible other than on charge 1, to which the applicant pleaded guilty. In determining that question, it is, of course, important also to bear in mind the unnecessary prejudice occasioned to the applicant by reason of the circumstance that he pleaded guilty to charge 1 on the empanelment of the jury, so that his admission to the theft of the van, which would otherwise have been irrelevant, was before the jury in their consideration of charges 2 to 7 on the indictment.
3. In considering the question as to the efficacy of the directions given by the judge to the jury, the starting point is, of course, that the evidence, that is the subject of ground 1, was entirely irrelevant to the jury's consideration of charges 2 to 7 on the indictment, and it was impermissible for the jury to have taken it into account, in its consideration and determination of the offences that were the subject of those charges. Plainly, that, and the matters that are the subject of ground 1, should not have been before the jury. The conclusion is inescapable that the reference to those matters, both in the prosecution opening, and in evidence, was prejudicial to the fair trial of the applicant on those charges for a number of reasons.
4. First, there was a significant risk that, notwithstanding the direction given to it by the judge, the jury might have taken into account, or been influenced by, the inadmissible evidence, and other matters, in its consideration and determination of the charges that were before it. In that respect, the submission made by the prosecutor in final address - that the hoax call was an attempt by the applicant to 'divert the attention of police from his own activities in the vicinity' - was capable of inducing the jury to erroneously take into account the hoax call as an implied admission by the applicant of the offending that was the subject of charges 2 to 7.
5. Secondly, the matters, which were inadmissible, reflected unfairly and adversely on the applicant. They portrayed him as a person who had a criminal disposition, and as the kind of person who would commit the offences which were the subject of the charges before the jury. As such, there was a material risk that the material might have induced the jury to engage in impermissible propensity reasoning.
6. Thirdly, the quantity of the impermissible material that was placed before the jury might well have distracted the jury from a dispassionate and rational assessment of the evidence adduced in the trial that was relevant and admissible in respect of the charges that were before the jury. The inadmissible material, taken in combination, was not insignificant either in its quantity, or in its effect. Each item of inadmissible material had the potential to compound the prejudice occasioned to the applicant by reason of the other material that ought not have been adduced before the jury.
7. In a criminal trial, it is expected that juries adhere to directions of law given to them by the trial judge. The experience of the law is that that expectation is ordinarily well‑founded. However, there are necessarily limits to the capacity of a trial judge to offset the kind of prejudice that was occasioned to the applicant by the inadmissible material that was put before the jury in the present case. Further, as counsel for the applicant noted, the judge did not, in express terms, specify that the directions that he gave to the jury, to disregard the inadmissible material, were directions of law with which the jury must comply. In addition, while the judge did correctly direct the jury not to take the inadmissible material into account in considering the charges, his Honour did not give to the jury a specific direction that it should not use that material to engage in impermissible propensity reasoning, namely, that the applicant was the kind of person who might commit the offences that were the subject of the charges under consideration.
8. It is a matter of concern that defence counsel at trial (who was not counsel who appeared for the applicant on this application) did not take the appropriate steps to ensure that the inadmissible material not be put before the jury. As we have discussed, there is no apparent explanation why the applicant pleaded guilty to charge 1 (the theft of the Mitsubishi van) in the presence of the jury panel. Nor does it seem that counsel took any steps to ensure that, upon the applicant's plea of guilty to that charge, the prosecutor not refer to in her opening, nor adduce, the matters that were the subject of the notice of incriminating conduct, and which were all directed solely to proof of charge 1 on the indictment. Further, as counsel for the respondent has pointed out on this application, counsel for the applicant at trial did not take exception to any of the directions given by the judge to the jury relating to the inadmissible material. Nor did defence counsel seek any further direction concerning it.
9. Those matters are all relevant for consideration on this application. However, the point remains that, for the reasons that we have discussed, the plea made by the applicant to guilt on charge 1 in the presence of the jury, and the subsequent reference to, and adducing of, material before the jury that was only admissible on that charge, and which was otherwise inadmissible in the trial, necessarily occasioned significant prejudice to the right of the applicant to a fair trial of charges 2 to 7 on the indictment. On this application, counsel for the respondent, quite correctly, did not seek to contend that there was any possible forensic advantage to the applicant in not objecting to the inadmissible material, and in failing to seek further directions in respect of that material.
10. Further, as was observed by this Court in the course of oral argument, the responsibility of ensuring that the applicant receive a fair trial was shared by the prosecutor. It was a necessary part of the prosecutor's duty to take steps to ensure that, on the plea by the applicant to charge 1 on the indictment, the material that would have otherwise been adduced on that charge, but which was otherwise inadmissible, should not be put before the jury.[1]
11. The circumstances of the trial, and the outcome of ground 1 of this appeal, demonstrate the importance of the role of counsel, both for the prosecution and the defence, at trial. In that respect, it is appropriate to record the following observations of the Court of Criminal Appeal in R v Caine,[2] in which neither the prosecution, nor defence counsel, had taken exception to erroneous directions given by the judge to the jury on the issue of provocation in a murder trial:

We turn to consider the relevance of the fact that no exception was taken at the trial to the charge on provocation. We do not think that the learned judge received the assistance from either end of the Bar table to which he was entitled. The duties of counsel in a criminal trial during and after the charge are responsible and important. Counsel for the defence are under a duty to their client to ensure that by taking exceptions to deficiencies in the charge they ensure as far as they can that their client's case is put to the jury in a way which is favourable to the client's interest as the rules of law, including the common law right to a fair trial, require. We consider that counsel for the prosecution has a duty to take exceptions with a view to correcting errors in the charge including errors which make a conviction more likely but depart from the law. It is not in the public interest that any citizen receive other than a fair trial according to law. It is not in the public interest that a trial be followed by use of the resources of the judicial system in the expensive necessity of an appeal and a new trial.[3]

1. In the circumstances, it must be concluded that by reason of the immaterial matters being referred to in the prosecution opening, and being adduced in evidence, the right of the applicant to a fair trial of the charges against him was substantially compromised. We do not consider that the directions given by the judge to the jury were, or could have been, sufficient to offset that prejudice, or to ensure that the jury not engage in impermissible use of that evidence and material in its consideration of the charges that were before it.
2. It follows that as a result of those matters, there was a substantial miscarriage of justice in the trial of the charges against the applicant. For that reason, ground 1 of the application for leave to appeal must succeed.

1. In support of ground 2, counsel for the applicant noted that the prosecution case as opened, and which the applicant was required to meet, was that the applicant himself was the person who turned off the power to the house, who trespassed on the property, who stole the items that were the subject of charges 3 to 7, and who then put the two firearms at Reedy Swamp. The prosecution did not open or suggest that the applicant's liability might arise as a result of being a person involved in the offending of another person. Further, in a closing address to the jury, the prosecutor did not invite the jury to convict the applicant on the basis that he had been complicit with other persons in the commission of the offences.
2. Counsel further noted that, in his closing address, defence counsel did not put in issue the fact that a burglary and theft had occurred. He put squarely in issue the question whether it was possible for the applicant to travel from the APCO service station in Numurkah Road to the premises in Fox Court in time to turn off the power to the house by 4:00 am.
3. It was submitted that, in that context, the judge was not permitted to invite the jury to convict the applicant on the alternative basis, that he was involved in a burglary and theft committed by another person or other persons. However, the judge did make such a clear invitation to the jury. Specifically, the judge instructed the jury that it could convict the applicant, if it was satisfied that he was involved in the burglary or theft as a joint arrangement or understanding with someone else, or that he acted as part of a joint criminal enterprise. It was submitted that that direction by the judge was an erroneous extension of the prosecution case, which had the effect of undercutting the defence case, by providing a pathway for the jury to convict the applicant, even if it was not satisfied that the applicant was the person who turned off the power and committed the burglary. Counsel further noted that the judge did not give the parties any notice of his intention to invite the jury to convict the applicant on the basis of complicity. Neither the closing address of the prosecutor, nor that of defence counsel, reflected any appreciation that the judge intended to leave liability on the basis of complicity available to the jury.
4. In the circumstances, it was submitted, the fact that defence counsel (or the prosecutor) did not take exception to the charge given to the jury does not detract from the conclusion that the erroneous expansion by the judge of the prosecution case caused the trial to miscarry.
5. In response, counsel for the respondent accepted that the judge erred in giving to the jury the direction which is the subject of ground 2. Counsel properly accepted that if that direction provided to the jury a new 'pathway' to finding the guilt of the applicant, which was not relied on by the prosecution in the trial then ground 2 must succeed. Counsel further accepted that if the case had been put to the jury on a complicity basis, the directions, which the judge gave to the jury, would clearly have been deficient, as the judge did not give any explanation or elucidation of the matters which the prosecution was required to establish if the applicant were to be found guilty other than as a principal offender. However, it was submitted, when regard is had to the manner in which a case was put, and the purpose for which the directions were provided, any shortcomings in the directions given by the judge did not result in a substantial miscarriage of justice.
6. In that respect, counsel for the respondent noted that the prosecution case was consistently put on the basis that the applicant himself physically entered the Fox Court premises and stole the various items within the property. The forensic evidence on the freezer and on the jemmy bar supported the prosecution case put on that basis. Further, counsel noted, there was no evidence positively indicating that another person was or may have been present at the time of the burglary.
7. Counsel further noted that although the direction by the judge did raise the spectre of someone other than the applicant turning off the power to the premises at Fox Court, there was nothing in the direction given by the judge which sought to resolve the 'timing' issue. Further, there was no realistic basis for the applicant to be convicted on charges 2 to 7, other than on the basis of his own personal commission of each of the offences, in which turning off the power was a relevant fact, but not an element of the offence. Accordingly, it was submitted, the erroneous direction given by the judge to the jury did not open an impermissible pathway for the jury to find the applicant guilty of the charges before it.

1. In considering ground 2, the starting point is that quite clearly the prosecution case was based on proof by it that the applicant himself committed the offences that were the subject of charges 2 to 7. That is, the prosecution case was that it was the applicant, alone, who entered the premises of Mr and Mrs Mammone at 5 Fox Court, Shepparton by trespass, and stole from those premises the items that were the subject of charges 3 to 7 inclusive.
2. The prosecution opening, that was filed on the matter, specifically alleged that at 4:00 am on Tuesday 19 October 2021, the applicant attended the premises in Fox Court, Shepparton, switched off the mains power, and broke into the premises by removing the flywire to the sunroom and sliding open the window, and climbing over the fridge that was in front of the window.
3. At the trial, the prosecutor opened the matter to the jury consistently with the written opening. The prosecutor put to the jury that at approximately 4:00 am on 19 October 2021, the applicant attended 5 Fox Court in the stolen van, switched off the mains power, and entered the address via the sunroom at the rear of the address. There was no suggestion by the prosecutor in her opening that the applicant committed the offences, that were the subject of charges 2 to 7, in company with, or with the assistance of, any other person.
4. Further, it is quite clear that the defence was based on the proposition that the prosecution could not prove beyond reasonable doubt that it was the applicant who was the person who broke into the premises and stole the items that were the subject of the theft charges. In his preliminary opening to the jury, counsel for the defence stated that the first matter that was in issue in the trial was that it was disputed that the applicant attended the premises and committed the burglary at the premises. Counsel put to the jury:

He [the applicant] didn't enter 5 Fox Court. He didn't take firearms. He didn't take money. He didn't take property such as paperwork and the CCTV hard drive. He disputes that.

1. The trial was conducted, and the evidence addressed, consistently with the openings by both counsel. In final address, the prosecutor did not depart from the manner in which she had opened the matter to the jury. A large proportion of the prosecutor's final address comprised a quite detailed summary of the evidence that had been put before the jury. In doing so, the prosecutor submitted that the evidence of Judith Lang, as to her observations of a man who walked up the driveway of the premises at 5 Fox Court on the evening of 19 October, and that the evidence of Peter Gramson, who saw a different young man walk up the driveway of the premises on 21 October, were each 'a red herring in terms of who burgled the house'. The prosecutor completed her final address by putting to the jury that the prosecution case was a quite strong circumstantial case that the offences that were the subject of charges 2 to 7 had been committed by the applicant.
2. Defence counsel's final address was directed to the proposition that it was not the applicant who had attended at the premises and broken into them. Counsel commenced his address by pointing to the evidence that the attendance by the applicant at the APCO service station at 3:55 am on 19 October, which was some 5.7 kms distant from the premises in Fox Court. Counsel noted that the evidence of Red Energy was that the power had been switched off at 4:00 am, and counsel thus contended that it had not been possible for the applicant to be the person who had attended at the premises, switched off the power and committed the burglary. Counsel further noted that the method of entry into the premises, through the sunroom, would not have been adopted by a person, like the applicant, who was familiar with the premises. Counsel also referred to the sighting by Judith Lang of the 'strange vehicle' at 7:30 am on 19 October, and her sighting of a person who did not match the description of the applicant. Counsel also referred to the evidence of Mr Gramson concerning the unknown male who entered the premises at 5 Fox Court on the morning of 21 October. In that respect, counsel noted that there was no specific evidence as to the time or date on which the burglary took place, other than that it must have occurred between 4:00 am on 19 October and the morning of 21 October.
3. Thus, the critical issue for the jury was whether it was satisfied beyond reasonable doubt that it was the applicant himself who entered the premises at 5 Fox Court as a trespasser, and stole the items that were the subject of charges 3 to 7. At the conclusion of the evidence, and at the conclusion of final addresses, there was no suggestion that the offence had been committed by some other person in company with the applicant, or by some other person who was acting pursuant to a joint enterprise with the applicant.
4. In the relevant part of his charge, the judge commenced by correctly directing the jury that to establish the offence of burglary, the prosecution must establish beyond reasonable doubt: first, that the applicant entered the building; secondly, that he did so as a trespasser; and thirdly, that at the time he entered he had the specific intent to steal property from the premises.
5. The judge then proceeded to introduce the alternative pathway to the establishing the offence. Having observed that it was not in dispute that someone had committed the burglary, his Honour posed central the question as follows:

The question is, does the circumstantial evidence satisfy you beyond reasonable doubt that Mr Portea either was the man alone or he acted in conjunction with others in a joint enterprise to do what occurred, that is, burglary.

1. The judge then directed the jury as to the elements of the crime of theft. He made it clear to the jury that it was not in dispute that that offence had been committed. Having done so, his Honour stated as follows:

Someone stole the guns and all the items I led through before. The issue is, can you infer from the circumstantial and on the evidence as a whole that Mr Portea was involved in that theft - in those thefts.

Now, as I said to you, he can commit the offence alone or in company with others, whether it was one, two or more people. The common example given in these courtrooms are if my staff and I decide to commit a bank robbery and my tipstaff goes out and steals a car and brings them back first to driving and my associate goes and gets the shotguns, gives it to me and I go into the bank and bail it up while my tippy keeps watch and my associate is keeping the car warm, we are all guilty of armed robbery even if one person is involved. Now, that is a clear example of a joint agreement or arrangement or understanding between the parties.

You are guilty of an offence committed by another if you are party to it, that if you intentionally encourage or assist the person who commits the burglary or the theft to do so. So in this case the Crown do not have to prove that Mr Portea acted alone. In fact, they could not. There is no idea how many people went into those premises but they had to prove that Mr Portea was involved and that is the issue for you to determine in this case.

Coming back to all - to the circumstantial evidence in this case, does it prove that Mr Portea took part in the burglary and theft and the elements as I outline them to you of both those offences are established.

1. It is quite clear, and not in issue on this application, that the judge thus directed the jury on a basis on which it might consider the guilt of the applicant on charges 2 to 7, which was not opened or relied on by the prosecution. In doing so, the judge did not merely instruct the jury on the basis that the applicant might have committed the offence in company with one or more other persons. More significantly, the judge directed the jury that it might so conclude on a basis that did not require proof by the prosecution that the applicant himself was the person (or one of the persons) who actually entered the premises at 5 Fox Court and removed from it the items that were the subject of charges 3 to 7. That basis is quite apparent, and would have been apparent to the jury, by reason of the example which the judge gave to the jury of the bank robbery in which one of the participants (the 'tipstaff') kept watch outside the premises in which the crime was committed and provided a means of escape from it.
2. In that way, the judge clearly directed the jury of a pathway, by which it might conclude the guilt of the applicant on charges 3 to 7, but which had not been put or relied on by the prosecution, and which, importantly, the defence did not have the opportunity to address.
3. The pathway so suggested by the judge to the jury was not entirely fanciful or without any evidentiary foundation in the trial. Thus, it could have appealed to the jury, and been utilised by the jury, in reaching its verdicts.
4. The evidence of Ms Lang as to the sighting of another person who entered the premises on the morning of 19 October, and the evidence of Mr Gramson of the young person who entered the premises on 21 October, was relied on by the defence, in final address, in suggesting the possibility that some other person than the applicant had committed the burglary and stolen the items which were the subject of the charges on the indictment. In that respect, defence counsel had, in addressing the evidence, suggested explanations for the palm print of the applicant on the fridge and the finding of the applicant's DNA on the jemmy bar. As noted, in final address counsel for the applicant had contended to the jury that the person, who had entered the premises in Fox Court, did not have familiarity with those premises, as evidenced by the manner in which that person had gained entry into the house.
5. Thus, the concept of a joint enterprise engaged in by the applicant and another person in the commission of the offences, that were the subject of the charges before the jury, was not entirely fanciful. In those circumstances, it could not be concluded that the jury would have disregarded, or not been influenced by, the directions given to it by the judge concerning the establishment of the guilt of the accused person by that person's involvement in a joint enterprise. In that way, and contrary to the submissions made on behalf of the respondent on this application, the impugned passage in the judge's charge did open to the jury an impermissible pathway to finding the guilt of the applicant on the charges before it. As a consequence, it must be concluded that there was a miscarriage of justice.[4]
6. It follows that ground 2 of the application for leave to appeal must succeed.

1. For the foregoing reasons, the applicant has succeeded on ground 1 and ground 2 of the application for leave to appeal. Accordingly, the application for leave to appeal must be granted, the applicant's appeal allowed, the conviction of the applicant on charges 2, 4, 5 and 7 of the indictment be set aside and the applicant be retried on those charges.

1. I have had the considerable advantage of having read in draft the reasons of Priest and Kaye JJA. I joined in the orders made at the conclusion of oral argument; and I did so for the reasons their Honours give that concern the appellant's ground 2.

[1] Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116, 119 (Barwick CJ, McTiernan and Mason JJ); [1974] HCA 19; R v Bazley (1986) 21 A Crim R 19, 29 (Young CJ); Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317, 339‑-341 [56]-[59] (Winneke P, Charles and Chernov JJA); [2002] VSCA 84; Paulino v The Queen [2018] VSCA 306 [141]-[145] (Priest, Beach and Kaye JJA).

[2] (1990) 48 A Crim R 464.

[3] Ibid, 475 (Crockett, McGarvie and Beach JJ); see also R v Wright [1999] VSCA 145; (1999) 3 VR 355, 356 [2] (Phillips CJ, Charles J).

[4] King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 429 (Deane J), 432, 435-436 (Dawson J); [1986] HCA 59; R v GAS [1998] 3 VR 862, 878-879 (Batt JA).