R v Arnott [2009] VSCA 299

1 I have had the advantage of reading in draft the reasons for judgment of Ashley JA. I agree with them and I am unable to add anything of use to them. The application for leave to appeal should be refused.

2 On 3 January 2007 a jury found the applicant, Russell Laurence Arnott, guilty of the murder of Daniel Zigante on 3 March 1985. On 19 September 2007, after an earlier plea hearing, he was sentenced to 17 years imprisonment with a non-parole period of 12 years and 6 months.

3 This was the applicant's second trial. He had been arrested and interviewed on 4 August 2004, and had then been remanded in custody. He had been committed for trial in July 2005, and had stood trial in March and April 2006. The jury had been unable to agree upon a verdict, and had been discharged without verdict on 17 April.

4 The grounds of appeal which were ultimately pursued were as follows:

1. The learned trial judge erred in law in determining that the applicant's record of interview was voluntary.
2. Alternatively to ground 1, the learned trial judge erred in failing in the exercise of judicial discretion, to exclude the applicant's record of interview.
3. The learned trial judge erred in the exercise of his discretion pursuant to section 43 and 44 of the Juries Act 2000 to discharge a juror and to allow the trial to continue with less than 12 jurors.

1. There has been a substantial miscarriage of justice because the prosecutor failed to:

(a) specifically cross examine the applicant on his knowledge of the .22 LR bullet;

(b) comply with the rule in Browne v Dunn (1893) 6 R 67;

1. The learned trial judge erred in ruling that the prosecutor was at large in his closing address to make the argument about the .22 LR bullet despite not having cross examined the applicant on this issue.
2. The learned trial judge erred in failing to discharge the jury having ruled the prosecutor could address on the LR issue at large and not having cross examined on the point.

. . .

11. The verdict is unsafe and unsatisfactory.

5 The victim was a security guard. In the early hours of 3 March 1985 he attended in the vicinity of the Kmart store at the Altona Gate Shopping Centre in the course of his patrol duties. His body was found at about 3.45am that day at the rear of the Kmart store. He had suffered a single bullet wound to the upper back. The bullet had traversed through his right lung and the upper part of the right side of his heart. Forensic evidence suggested that the gun had been fired at very close range. The bullet retrieved from the victim's body was .22 calibre, of the so-called 'long rifle' type. There are three different kinds of .22 ammunition - short, long, and long rifle.

6 Some days after the accident it was observed that the hinge pins of an emergency exit door at the rear of the premises had been removed. This meant that the door, which only opened from the inside, could have been pulled away and access had to the premises. There was some evidence to suggest that the hinges might have been removed by the use of a tool such as a screwdriver. The Crown hypothesised that the person who had removed the pins, as a necessary first step towards a burglary and theft, had also been the killer.

7 The crime remained unsolved for almost 20 years. Then, on 3 August 2004, the applicant telephoned Crime Stoppers. He said that he was responsible for the death of a security guard in 1983 or 1984. He identified himself as 'Arnott' and also as 'Isiah Love'. He provided an address and a telephone number. He said that he was staying in accommodation for the mentally ill.

8 Soon enough, the police were able to pinpoint the offence to which the caller had referred. A policeman made a call to the telephone number, and the applicant identified himself. Police attended at the premises where he was residing. He accompanied police to the St Kilda Road police complex. There, after he had been interviewed by a medical practitioner, and whilst in the presence of an 'independent third person' (who had also spoken with him), he took part in a record of interview. Confessional statements made in that record of interview were central to the Crown case against him.

Ground 1 - Was the confession admissible? Ground 2 - did the judge err in not exercising her discretion to exclude the confession?

9 In written submissions, counsel for the applicant contended that 'in light of the evidence of Dr Grounds and the applicant, voluntariness was undermined. It could not safely be concluded that the applicant did not feel compelled by his psychiatric condition to make the confession'. Orally, however, counsel said this:

... one of the difficulties is that there's a conflict in the authorities about the breadth of voluntariness, but most of them would render even a best view of this evidence, from the applicant's point of view, very difficult to get up on involuntariness, so it's not abandoned but it's lightly pressed because of the uncertainty in the law.

... the focus of our argument is directed to reliability and the exercise of the unfairness discretion.

10 Notwithstanding this evident lack of enthusiasm for the merits of the voluntariness argument, it was not abandoned, and it must be addressed.

11 At common law, an accused's confession is not admissible against him or her unless it is voluntary,[1] and a confession is not voluntary if it is obtained by intimidation, threat or promise of advantage held out to the accused by a person in authority. As Dixon J explained in McDermott v The King:[2]

At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J. in R. v. Thompson[3] The expression 'person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (Ibrahim v. The King;[4] Rex. v. Voisin.[5])

12 In Victoria, the common law rule is modified by s 149 of the Evidence Act 1958, to the extent that a confession shall not be rejected on the ground that a promise or threat was held out to the accused unless the trial judge is of the opinion that the inducement was really calculated to cause an untrue admission of guilt to be made.

13 The operation and effect of s 141 of the Evidence Act 1928, which was the legislative predecessor to s 149 of the 1958 Act, was considered by the High Court in The King v Lee.[6] As was there explained, s 141 operated in cases of threats and promises which would have led to the exclusion of a confession at common law, with the effect that:

such a confession is not to be rejected as evidence merely on the ground of a preceding or concurrent threat or promise unless the judge is of opinion that the threat or promise 'was really calculated to cause an untrue admission of guilt to be made'. In this provision the legislature has directly enacted that the probability of a threat or promise inducing an untrue admission of guilt is an element which it is relevant to consider in deciding whether or not the confession should be admitted in evidence.[7]

14 In all other respects, however, the admissibility of a confessional statement remains governed by the common law.

15 For present purposes, therefore, it is important to understand that the common rule as to the inadmissibility of involuntary confessions or, more accurately, 'the basal principle that to be admissible a confession must be voluntary,'[8] is restricted to involuntariness the result of inducement by violence, or threat or promise held out by a person in authority. A confession is not rendered involuntary by reason simply of the confessionalist's mental disease or disorder, even if the disease or disorder is so serious as to deprive the person confessing of comprehension and understanding.[9] On the other hand, the confession may be excluded if the author's mental condition is shown to have been such that 'no attention ought be paid to what he said'.[10]

16 In R v Parker,[11] an authority relied upon in the written submissions for the applicant with respect to involuntariness, Gleeson CJ, with whom Hunt and Loveday JJ agreed, laid down six principles as relevant to the resolution of difficulties which may arise when the Crown case depends upon a confession alleged to have been made by an accused person suffering from a form of mental disability. They included this:

The intellectual capacity of the accused, or the existence of some disease or disorder of the mind, may go to the issue of whether the confession was voluntary and may in that respect bear upon the admissibility of the evidence.[12]

17 With respect, however, it would be wrong to read the emphasised part of that proposition literally. For his Honour had earlier referred to Sinclair, and stated that -

Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting, the truth.

18 Moreover, immediately following the passage cited at [16], his Honour put in context what he had said by observing that intellectual [in]capacity or disease or disorder of the mind -

... may be relevant to whether the confession was made in the exercise of free choice, as for example, where an accused is incapable of making such a free choice, or of understanding his right to choose between speaking and remaining silent ... or have an important bearing upon whether the statement was made as the result of duress, intimidation or undue insistence or pressure.

19 The latter rationale is unremarkable. The former reflects a certain ambivalence in the authorities upon the question whether, notwithstanding the common law's focus on exogenous circumstances in determining whether a confession was voluntary, mental illness[13] which is sufficient to deprive a person of the ability to properly appreciate and exercise the choice to speak or remain silent does fall for consideration in the context of voluntariness rather than in the exercise of the unfairness discretion. A passage in the judgment of Dixon CJ in Wendo v The Queen[14] cited at [22] below discloses the issue, which was discussed by Doyle CJ (who refrained from stating a conclusion) in R[15] Pfitzner.15 As matters now stand, the weight of authority seems to be that the issue falls for consideration in the exercise of the unfairness discretion. To that extent, the accuracy of what was said by Gleeson CJ in the passage cited above may be doubted.

20 The point of the High Court's decision in Sinclair was that disease or disorder of the mind is, of itself, irrelevant to the law's conception of voluntariness. Although the supposed logical basis of exclusion of involuntary confessions is doubt as to their reliability, the rule of exclusion is predominantly one of policy. In Sinclair, Dixon J said this:

The argument is that to be admissible evidence of a confession must be an expression of the independent will of the confessionalist and, moreover, must derive from the circumstances in which it is made that assurance of trustworthiness which the law finds in the improbability of a false admission being made of incriminating facts. If the mind is unsound and its infirmity disables the person confessing from distinguishing between reality and unreality, how, it is asked, can these conditions be fulfilled? The argument appears to me to press too far the supposed logical basis of the exclusion of 'involuntary' confessions. 'The rule which excludes evidence or statements made by a prisoner, when they are induced by hope held out, or fear inspired, by a person in authority, is a rule of policy. `A confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it' (R. v. Warickshall). It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence judges have thought it better to reject it for the due administration of justice: R. v. Baldry. Accordingly, when hope or fear was not in question, such statements were long regularly admitted as relevant, though with some reluctance and subject to strong warnings as to their weight' ...

21 It was recognised in Sinclair that the mental condition of a person who makes a confession may be so serious that no account should be taken of his or her confession. In that event, the confession should be rejected. But, as the majority held, the exclusion of a confession on that basis is to be determined by reference to similar principles as apply to the competency of witnesses. The test is whether the person's mind was so disordered and irresponsible that it would be dangerous to pay any attention to whatever he or she had said in hac re. If it is, it is inadmissible.[16]

22 In Morris v The Queen[17] Deane, Toohey and Gaudron JJ posed but did not answer the question whether the exclusion of a confession in such circumstances represents the application of an exclusionary rule or rather the exercise of what their Honours described as 'the trial judge's undoubted discretion when it would be unfair to the accused to admit them'. But Dixon J does not appear to have been in any doubt that it was a rule of exclusion. In Wendo v The Queen[18] Dixon CJ (as his Honour was by then) said:

... I do not understand what the late Starke J meant by the statement in Sinclair v The King when he said that a judge was entitled and bound to consider the probability of the mental condition (scil. of the prisoner) affecting the truth of a confession in all the circumstances of the case and to decide whether there was prima facie reason for presenting it to the jury. It appears to me that once it is established that a prisoner understood what he was doing in making a statement which, if true, would amount to a confession, it is admissible in evidence quite independently of its probative value. See the discussion in Sinclair's case.

23 Similarly, in Tofilau v The Queen,[19] Callinan, Heydon and Crennan JJ said that a confession by someone whose mind is so disordered and irresponsible that it would be dangerous to pay any attention to whatever he or she had said is 'inadmissible'. With respect, that suggests that they too conceived of it as an exclusionary rule.

24 The test in Sinclair has been criticised,[20] but not by the High Court. It was affirmed in Jackson v The Queen[21] and again by Callinan, Heydon and Crennan JJ in Tofilau.[22] So, unless and until the High Court says otherwise, it remains the law. Accordingly, it seems to me that the only permissible basis for exclusion of a confession on the ground of mental disability is the sort of mental incompetence adumbrated in Sinclair or, in a case of mental disability falling short of the gravity contemplated in Sinclair, perhaps in the exercise of the fairness discretion.[23]

25 In Swaffield v The Queen[24] a number of judges of the High Court expressed views about the way in which the fairness discretion operated in relation to a confession. Brennan CJ said that the fairness discretion should focus on cases where conduct which induces a confession throws doubt on its reliability and thereby establishes the unfairness of using the confession.[25] Kirby J was of the view that the matter should be approached by three steps by asking, first, whether the confession is voluntary; secondly, if so, whether it is reliable (which, in his Honour's view, was a test of admissibility as opposed to one of discretionary exclusion); and thirdly, if it is, whether it should be excluded in the exercise of discretion having regard, inter alia, to its unfairness to the accused, its probative value relative to its prejudicial effect and relevant public policy considerations.[26] Toohey, Gaudron and Gummow JJ in a joint judgment recognised that, as the authorities then stood, the likelihood of an unreliable confession 'did not mandate the exercise of the fairness discretion to exclude' the confession. But their Honours went on to say that:

Nevertheless, it is hard to understand why, in such circumstances, the discretion would not be exercised in that way, particularly when regard is had to the consideration that the risk of an untrue admission is the rationale for the admissibility of a non-voluntary confessional statement.

Unreliability is an important aspect of the unfairness discretion but it is not exclusive. As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused ...[27]

26 Those observations were made in the context of a matter which involved covertly recorded conversations between an accused and an undercover police operative after the accused had declined to answer questions asked by police during a formal police interview. No doubt, they must be read in that light. But the manner of expression implies the existence of a principle which is capable of more general application and, if so, that the reliability of a confession is something which may be taken into account in the exercise of the fairness discretion howsoever the question arises. With respect, that appears also to accord with the views expressed by Callinan, Heydon and Crennan JJ in Tofilau.[28]

27 There is a conceptual difficulty in treating reliability as relevant to the exercise of the fairness discretion in the present context. As Doyle CJ observed in R v Pfitzner,[29] the discretion to exclude a confession as unreliable would only arise once the confession had passed the exclusionary test laid down in Sinclair - of not being so unreliable that it would be dangerous to pay any attention to it. To then treat concerns about lesser degrees of unreliability as a basis for exclusion in exercise of the fairness discretion could subvert the strictness of the Sinclair test.

28 But the answer to that difficulty may be that the discretion is about fairness, not reliability as such. Hence, it would not be illogical to allow for the exclusion of a confession which was unreliable and which, because of its unreliability, ought be excluded as a matter of fairness, even if it were not so unreliable as to be inadmissible under the strict test of Sinclair. Apart from the issue of reliability, there is also the possibility that a confessionalist's mental condition may be such as to render him or her incapable of making a 'sensible judgement' whether to confess or not. In Pfitzner, as I noted earlier, Doyle CJ left for another day resolution of the question 'whether the mental or psychological condition which impairs the ability of an accused person properly to appreciate and exercise the choice to speak or remain silent [could go] to voluntariness'. Approaching that issue as going to the exercise of the unfairness discretion, his Honour said this:

... circumstances which provide a basis for the exercise of the discretion may rise out of the mental state of the accused person. A mental condition which produces an inability to make a proper choice whether to answer questions or not (as distinct from a loosening of the tongue which might flow, for example, from the effects of alcohol) may provide a basis for the exercise of the discretion. Likewise, as is suggested in some of the judgments referred to, irresponsibility in the sense of an inability to apprehend or to comprehend the situation in which the person is placed when called upon to answer questions, might provide a basis for the exercise of the discretion.

In my opinion the question to be answered in the present case is whether the accused's mental state was such that he was incapable of exercising, as distinct from disinclined to make, a sensible judgment about whether or not he should make a statement to the police. By a sensible judgment in this context I mean one which involves a meaningful consideration, within the limits of the accused's own intelligence, of the right to remain silent, and of the significance of the occasion (the making of a statement which might be used in evidence). It seems to me that a person might be suffering from a mental disorder which makes him liable to make statements which are the expressions of a delusion, and yet be capable of appreciating that he has no obligation to make a statement and capable of appreciating that any statement made might be tendered in evidence against him. But, on the other hand, such a person might be in a state such that no true appreciation or consideration of these matters takes place.[30]

29 It is important to stress, however, that the notion of being 'incapable of exercising ... a sensible judgment' is confined to mental incapacity to comprehend that there is no obligation to make a statement and, that if made, it might be tendered against its maker. With respect, that is what I take Doyle CJ to have meant by the difference between a mental state which renders an accused incapable of exercising a sensible judgment about whether or not he should make a statement to the police and a mental condition which renders him or her disinclined to make such a judgment. The experience in this Court is that it is not uncommon for offenders caught up in the immediate emotional aftermath of an offence to make admissions which they would be disinclined to make once their state of mind returns to normal and their ordinary inhibitions are restored. One might say that their mental state at the time of making admissions renders them incapable of exercising a 'sensible judgment' about whether or not they should make a statement to the police; for, on one view of the matter, the only sensible judgment would be to remain silent. But that would not be enough. To allow for a broad basis of discretionary exclusion of that kind would challenge the notion long accepted in this country that:

Self harming statements, &c, made by a party when his mind is not in its natural state, ought, in general, to be received as evidence, and his state of mind should be taken into account by the jury as an infirmative circumstance. Thus a confession made by a prisoner when drunk has been received; and although contracts entered into by a party in a state of total intoxication are void, it is otherwise where the intoxication is only partial, and not sufficient to prevent his being aware of what he is doing.[31]

30 The point was considered by Sholl J in R v Buchanan,[32] although his Honour spoke in terms of voluntariness. Subject to that qualification, it seems to me that the way in which the fairness discretion may be exercised in the case of an accused whose mental condition is claimed to have rendered him or her incapable of appreciating the right to remain silent, is captured in the following passage of Sholl J's judgment:

Now the important point, as it seems to me, is that in a case of the present kind there is no suggestion in the evidence that there was a suspension of the faculty of judgment, and the mere reduction of that faculty by the head injury or drink could not be held to be sufficient to render a confession or admission involuntary in the legal sense. It is always, as has been said, a question of degree, but for myself I would not be prepared to exclude such a statement as involuntary unless the evidence showed that in the balance of probabilities the accused was incapable of appreciating that he had a choice to remain silent, or incapable of exercising sufficient volition to give effect to what he knew was such a right of choice.[33]

31 Adopting and adapting those observations to the present circumstances, I consider that the applicant's confession should not have been excluded in exercise of the fairness discretion unless it were shown on the balance of probabilities that he was incapable of understanding that he had a right to remain silent or was incapable of exercising sufficient volition to give effect to what he knew to be his right to remain silent; or unless the confession at least demonstrated an extent of unreliability, though short of the strict test in Sinclair, such that it should be excluded in the exercise of the discretion.

32 The judge at the first trial made a ruling as to the admissibility of the record of interview which was adopted at the second trial. The ruling was first delivered in short form after a voir dire. The judge published a formal ruling later on. It was not suggested that their substance differed. Neither was it suggested that the ruling could not have been adopted at the second trial.

33 On the voir dire, the judge heard evidence from the investigating police officers; a forensic medical practitioner, Dr Morgan; a so-called 'independent third person', Mr Boles; Dr Grounds, a treating psychiatrist; and the applicant. His Honour also reviewed an audiotape of a conversation between the applicant and a police officer whilst the former was being taken to the police station, and a videotape of the formal interview.

34 The learned judge expressed his conclusions this way in his initial ruling:

Bearing in mind all that material I am satisfied, first, that the accused was fit to be interviewed shortly after midnight on Tuesday 4 August 2004 commencing at 0:45 a.m. Second, I am satisfied he fully understood his rights and he exercised his rights in an informed manner. Third, that the answers given by the accused were voluntary. Fourth, that the interview followed proper procedures. Fifth, that it is not unfair to admit the interview in evidence in the trial of the accused.

35 In his formal ruling, the judge summarised the evidence, and then expressed these conclusions:

Mr Desmond for the accused, in very well marshalled and presented submissions, submitted that the interview of the accused should not be admitted in evidence. He so submitted because, he said, the interview was not shown to be voluntary, it failed numerous procedural requirements, and in the exercise of the unfairness discretion should be excluded.

Despite the quality of Mr Desmond's submissions, I am not persuaded by them.

I have examined the video of the interview of the accused and considered its contents, together with all the evidence bearing upon voluntariness and reliability. The accused had a psychiatric condition, schizo-affective disorder. He was cognitively able and very intelligent. He was properly advised of his rights by the investigating police, had advice from a solicitor and had the presence of an independent third person. He had been medically assessed. Although the accused on the voir dire stated as to understanding the caution (T. 249-250)

'I was in no condition to be making those sort of statements at that point of time with my mental disrepair with my mental and physical state'

I am affirmatively satisfied that the accused was acting and speaking voluntarily.

As to the provision by investigating police as to warnings, and medical examination of the accused, and proceeding to interview, I consider that the investigating police acted lawfully and properly. It was evident from the outset that prudence and restraint needed to be exercised by the officers in investigating the information provided initially by the accused to Crime Stoppers, particularly given the almost 20 year hiatus between death and apparent implication. The officers followed normal and sensible procedures in obtaining the services of a medically qualified forensic officer. That officer did not suggest obtaining specialist psychiatric assessment. The police officers also followed normal and sensible procedures in obtaining the services of an independent third person. That person spoke with the accused in private before the commencement of the interview, and was present throughout the interview. The police officers facilitated a confidential telephonic consultation between the accused and a solicitor before the interview. They gave the accused full and proper instruction as to his rights. The criticisms by Mr Desmond of police procedure are in my view criticisms of detail - and not of substance. The investigating police followed normal procedure in seeking an Independent Third Person. In fact the person who was contacted by telephone was Mr J K Bowles, a justice of the peace and bail justice, who had been removed from the register of the Office of Public Advocate because of 'zealously' (T. 128) guarding the interests of a previous interviewee. Mr Bowles appeared to me to be both responsible and truthful. He had received previous legal advice that there was no impediment to his continuing to act as an Independent Third Person. The conduct of the investigating officers complied with the provisions of Pt. 3 Div. 1 Subdiv. 30A Crimes Act 1958. The provisions as to independent third persons (s.464E(1)) did not apply (see s.464E(3) and s.464B(5) and s.464B(1)(a)(iv)) and in any event the officers followed proper and fair procedure in calling for the attendance of Dr Morgan and then of Mr Bowles. Likewise the officers complied with the provisions of the Victoria Police Manual Instruction 112-3 (Suspects and offenders: interviews and statements) including section 6.2 although the accused was not within that category (intellectually or mentally impaired persons). The circumstance that Mr Bowles was no longer registered as an Independent Third Person with the Office of the Public Advocate was in all the circumstances of this case a formal matter only. There was no statutory or regulatory breach in the conduct of the interview.

I gave particular attention to the evidence of Dr Grounds, both as to the psychiatric history of the accused and as to his opinion, stated above, of the fitness of the accused for interview and of the reliability of the accused's apparent admissions. However, Dr Grounds was not present at the interview, had not viewed the video, and had no specialist expertise in fitness for interview. Dr Morgan was present before interview, carefully assessed the accused for fitness for interview, and had substantial experience in fitness assessment. He was not a psychiatrist and did not have the applicant's detailed psychiatric history; but he was medically qualified and was experienced. Dr Morgan impressed me as a careful and fair witness and medical practitioner.

In his evidence before me, as I have said the accused showed himself to be intelligent and quick. As he is facing trial, I shall say no more than that.

Taking into account the whole of the evidence including the contents of the interview and the appearance of the video of it, I am affirmatively satisfied that the answers of the accused in interview were voluntary, that they are reliable, that the investigating officers followed lawful and proper procedures, and that admission in evidence of the interview was fair.

36 The evidence addressing the question whether the applicant had made a free choice to confess was mixed. Detective Daly, who was a police officer with sixteen years' experience and one of the investigating officers, gave evidence on the voir dire that, apart from the fact that the applicant was emotional and crying and had a history of mental illness, he did not detect any signs or symptoms or other indications that the applicant was unfit to be interviewed. Before beginning the interview, he ascertained that the applicant was under the care of Dr Grounds, a psychiatrist, and attempted to contact Dr Grounds but without success. As a matter of precaution, therefore, he arranged for the applicant to be medically examined by the forensic medical officer, Dr Morgan, before proceeding with the interview, and he arranged for an independent third person, Mr Boles, to be present during the interview. Detective Anastasiadis who was his assisting officer gave evidence on the voir dire to substantially the same effect.

37 Dr Morgan gave evidence on the voir dire that, as part of his examination of the applicant, he had taken a history and, as part of that process, tested the applicant's ability to remember dates and his ability to basically present information in a clear and coherent fashion. Dr Morgan said that he found that the applicant 'wasn't jumping all over the place, he was able to present his life in a fairly coherent, logical, rational fashion;' And that 'he came across as being someone who was quite intelligent.' He noted that the applicant 'had some unusual thought belief systems.' He said that the applicant 'spoke of astrological themes and various things such as, for instance he used the term' "building blocks stacking up inside his head"'. But the doctor said that he 'did not believe those to be psychotic belief systems and [he did not] think Mr Arnott was referring to those types of things in a ... form other than a sort of way of conveying how he was feeling'. He continued:

Certainly there was not tangentiality in his thoughts. He was able to follow the conversation, he wasn't going off on tangents. There was no flight of ideas. He didn't suddenly change topics or start speaking about completely different material.'

38 Dr Morgan said that he formed the opinion that the applicant could do justice to himself in a police interview but recommended that an independent third person be present to reduce the risk of potential self-harm.

39 The applicant gave evidence on the voir dire that before speaking to the police he had been afflicted with a sense of desperation, that he had had enough of life and just wanted to go to prison to die. He said that he had called Crime Stoppers because he wanted to get off the streets, and that he had fabricated the story about killing a man because he wanted to be sent to prison. He spoke of feeling unwell both physically and psychologically and that he had tried without success to get in contact with Dr Grounds. He claimed that he was suffering from schizophrenia, psychosis, depression and paranoia.

40 Dr Grounds, a consultant psychiatrist, gave evidence that he had diagnosed the applicant as suffering from schizo-affective disorder, which he explained as a condition where the patient has symptoms of bipolar disorder and also of schizophrenia and pure manic depression. He said that in his opinion the interview would not be 'valid' - meaning thereby not reliable. He also stated, however, that the staff at the Alfred Hospital, which the applicant had attended, did not consider that the applicant was suffering from bipolar disorder and had ceased the applicant's two mood stabiliser drugs.

41 As well as the testimonial evidence there was also an audio recording of the applicant speaking to police en route to the police station and a video recording of the police interview. I have listened to the audiotape and have viewed the videotape. In the former, the applicant's state appears to be highly emotional and at times distressed. In the latter, however, he appears to be calm and rational. From the content of the questions and answers, I consider that there could be no doubt but that he knew (1) where he was; (2) what the occasion was about; (3) that he had the right to remain silent; and (4) that, if he waived that right, anything which he might say could be used against him.

42 I go to the evidence pertaining to the question whether the reliability of the confession was so impaired that it should have been excluded in the exercise of the unfairness discretion. I do not suggest that the reliability of the applicant's confession was completely beyond doubt. As has been seen, Dr Grounds' opinion was that the confession was likely to have been unreliable; and it is to be noted that there were some inconsistencies between the facts as known and the details to which the applicant confessed. Those inconsistencies were relied upon by counsel in support of ground 11 - that is, the complaint that the verdict was unsafe and unsatisfactory. I discuss them hereafter, and conclude that they were either of no great moment, or otherwise explicable. But whatever could be said for the applicant about the number and extent of the inconsistencies, I consider that the confession, viewed overall, and also taking into account Dr Grounds' evidence, did not disclose, even arguably, an extent of unreliability such as to call for its exclusion in the exercise of the fairness discretion. What, if any, weight the jury attached to it was another question.

43 It will be apparent from what I have already said that in my view the judge was not shown to have erred in the exercise of her discretion. The evidence against admission of the record of interview went no further than that the applicant may have been suffering from schizo-affective disorder and that his condition might have compromised the reliability of his confession. It did not establish that his mind was so disordered and irresponsible that it would be dangerous to pay any attention to whatever he said about the killing, or that he was incapable of appreciating that he had a choice to remain silent, or that he was incapable of exercising sufficient volition to give effect to what he knew was such a right of choice. Having regard to what can be seen and heard on the videotape of the record of interview, it appears to me that the judge was entitled to be satisfied on the balance of probabilities that the applicant well understood that he had the right to remain silent and, on his own admission, that he chose to confess to police because he wanted to go to gaol; and that he was entitled to be satisfied that the confession was not unreliable to an extent sufficient to call for its exclusion in exercise of the unfairness discretion.

44 It is convenient, next, to address ground 11. Counsel for the applicant contended that, even if the record of interview were not to be excluded in the exercise of discretion, the doubts about its reliability were sufficient to create a reasonable doubt about the applicant's guilt[34] and thus that the verdict was unsafe and unsatisfactory.[35] In particular, he submitted that there were six matters which should have caused the jury to have a reasonable doubt about the applicant's guilt and so lead to this Court setting the verdict aside.

45 First, the applicant stated in his record of interview that he was in the process of removing the hinge pins from the Kmart door when the deceased first approached, but that he had not completed the task. The police checked all doors on the night of the offence and did not discover any sign of interference. Yet, on the following Monday morning, when staff attempted to open the door, it fell off its hinges, this suggesting that both hinge pins had been completely removed.

46 Second, when asked during the record of interview the distance from which he shot the deceased, the applicant replied variously that when he fired he was a (1) 'long way' distant; (2) at a distance of 50 feet; and (3) 30 to 20 feet from the deceased. The forensic evidence, however, was that the fatal shot was fired at a distance of not more than 10 cm.

47 Third, the applicant stated in his record of interview that an empty cartridge discharged from his firearm when he fired at the deceased - the weapon being semi-automatic - and that he did not retrieve the cartridge and take it with him. Yet no such empty casing was found when the crime scene was searched the morning after the shooting.

48 Fourth, there was Dr Grounds' opinion that, because of the applicant's mental condition, his confession was unlikely to be reliable; and that the applicant had been capable of fabricating his confession in order to get off the streets into prison accommodation .

49 Fifth, there was a reasonable possibility that the applicant could have acquired knowledge of details of the killing from (1) newspapers; (2) staff at Kmart; (3) a police brochure published at the time; and (4) by speaking to a man who attended the coronial inquest into the death of the deceased.

50 Sixth, in his record of interview, the applicant claimed to have committed some other crimes. But when police later investigated those claims, they proved to be baseless.

51 There is some force in counsel's submission. Each of the matters which he highlighted causes a degree of doubt as to whether the applicant was the offender. But each of them was also examined at considerable length in the course of the trial and in most cases there were a number of plausible explanations.

52 I begin with the door hinge pins. In general terms, the applicant told the police that whilst removing the pins he was interrupted by the victim. Thereafter, he said, he abandoned his efforts to remove the door and lay down before shooting the victim in the back of the head. There were these questions and answers:

100. Alright. And when you went to Kmart that night where did you keep the firearm?

When the security guard ... When I was knocking the pins out of the door I saw the car pull up, I lay down on the ground, the security guard came up. He said, 'What's wrong with you,' and I said, 'I've been to a party, I'm sick'. And he said, 'I'll go and get you help,' and he started to walk away and I stood up and lifted up the firearm and shot him in the back of the head because I didn't want to go to gaol for break and entry.

...

119. What sort of door was it?

- A metal door with - with s-, with steel hinges with pins coming through the hinges holding the door.

120. Do you recall what side the door was hinged?

- The hinges on - when you're - when you're facing the building, the hinges were on that side of the door.

121. So, if you're facing the door, you - on your left or right?

Right.

...

130. How many hinges were there?

- I think there was two [sic] and I had the top hinge half way out.

131. And what's happened next, from your - from what you saw or heard?

I heard him scream.

132. Sorry, before all that - you were in the process of removing the hinges?

Mm.

523... The pins that you removed from the door now..?

524. Okay. How many hinges did you?

I think there was one at the top and one at the bottom, and the one at the top where I almost took the pin right out.

525. And what about the one at the bottom?

I hardly touched that, I didn't get a chance.

619. How long had you been at the - at the back of K Mart before the guard arrived? .

Only a couple of minutes - only a few minutes. He totally surprised me. I just - I just got there and knocked a - knocked a pin out and he arrived.

620. What alerted you to him arriving there?

I hear -, I heard the car and I saw the lights - just realised it was all over, and then - then I did the wrong thing by shooting him.

621. But when the car first arrived, what were you doing there?

I was standing and knocking the pins out.

622. And what did you see then, or?

... I saw him get out of his car so I lay down on the ground beaten. And then at the last minute I thought ... That I was sick. And then I panicked when he walked away and tried to take advantage of the situation so I wouldn't get caught and I fired a shot at him just to - just to scare him off ...

53 At first glance, it might be said that the most likely explanation for the applicant telling police he had only driven out one of the hinge pins is that he was either guessing or repeating what he had heard someone else say about the subject. But on closer analysis, that does not seem likely. For a start, no one else ever suggested that only one pin was removed. The police who initially investigated the crime site did not notice that any hinge pins had been removed. It was not until the following Monday morning, when staff opened the door and it fell off its hinges, that it was discovered that both hinge pins had been removed. Presumably, therefore, if Kmart staff ever said anything about the door to customers or others who were willing to listen, they would have said that both pins were removed.

54 Second, it was not the sort of detail that the applicant would be likely to guess about. If, as he said was the case, he had been told by Kmart staff that the door pins were removed, there was no reason to guess that only one pin had been removed, and even less reason to tell the police that only one pin had been removed. According to the applicant's evidence, he was attempting to persuade the police that he was guilty so that he would be accommodated in gaol. Consequently, if he did not know what had happened, he would have told police what he believed had happened, and that would have been what he had been told by the Kmart staff.

55 Third, if, on the other hand, he had not had any discussion with Kmart staff and had not been apprised of the evidence given at the coronial inquiry, there would have been no reason for him to suspect that either door hinge pin had been removed; still less to tell the police that he had only removed but one door hinge pin. For he would have known that if he guessed incorrectly, he would be bound to be found out almost immediately.

56 Fourth, if his consistent account had been that he had removed only the top hinge pin before being interrupted by the security guard, it would provide an apparently rational explanation for his assertion of that detail. It would not account, however, for how both pins came to be removed by the time that Kmart staff opened the door on the Monday morning following the killing.

57 The applicant was consistent in saying that he had been interrupted when in the course of breaking into the premises. But his account of the stage that he had reached at time of interruption varied somewhat. His answers about what he had done in respect of the top hinge varied from the pin being not taken out to being 'half out' to 'almost right out', to 'knocked out'. His account of what he was doing, more generally, was 'knocking the pins out'. His account of what he had done in respect of the bottom hinge included, at one point, an assertion that he had 'hardly' touched it. In my view, it was certainly open to a jury to conclude from his answers that what he had done by the time he was interrupted involved a sufficient interference with the bottom pin to allow it to drop out. This is not to say that it had dropped out when his activities were interrupted.

58 In all, his account was reconcilable with his actions producing the result that neither pin was in situ by the Monday morning; and his assertion that he had either not touched the bottom pin, or had hardly touched it, suggests an extent of knowledge which, for reasons discussed above, told in favour of, rather than against, the reliability of his confession.

59 As to the distance from which the applicant shot the victim, the thrust of what the applicant told police was that he had shot at considerable distance in order to frighten the victim and without any thought of hitting him:

141. Alright. Whereabouts was he when you shot him?

Walking back towards his car.

142. And how close to you?

A long way.

143. How far would you say?

More than 50 feet.

144. And where were you situated at the time?

Here somewhere, and he was up there somewhere.

145. The door that you had tried to remove the hinges from, were you - how far from that were you?

I was just out from it.

146. Yeah. Could you give a distance?

Probably - probably 10 feet away from it.

147. Away from the building, was it?

Yeah.

148. Now, you mentioned that he may have been carrying a torch - do you know - - - ?

I think.

149. For sure?

I don't - no, I'm not sure.

150. Anything else that you can think of that he might've had with him?

No.

151. And I asked you if you could recall what clothing he was wearing?

I can't remember.

152. Now, where did you shoot him?

I aimed at the back of the head with the 22 pistol from 50 feet away. I didn't think I'd have a hope in hell of shooting him.

153. But did you - - - ?

I - - -

154. Shoot - - - ?

I - I just - I just tried to shoot to scare him aware away to run off but I hit him.

159. Can you describe what happened when you shot?

There was a - there was a groan of pain and that was the only sound.

542. Okay. Now, how-, how far do you think you were from the guard when you shot?

Probably about 40 feet - between 20 to 40 feet, something like that.

543. The information that we have, based on the examination of the scene suggests that the guard was shot a lot closer than what you're saying.

No, he was - he was a long way away and it was just a fluke shot. It was just a fluke shot.

551 Is it at all possible that he was closer than you think?

(no answer)

552 When you shot?

I don't think so, no.

557. So, when you shot the firearm what did you intend to do by firing that gun?

I don't know whether I was trying to scare him off or kill him or just give myself time to get away, just - just - I dunno, I panicked and just - and just - and just fired the gun and he screamed and fell and I ran off.

558. You said earlier in the interview you just aimed it at his head?

No, not just I went like that and went bang. It just - without even - without even - it was just a fluke shot. Who would've thought you'd hit anyone with a - with a 22 from 30 to 40 feet away - a 22 pistol. I didn't think I'd have done that.

559. Have you?

Not with a 22 pistol.

60 The forensic science evidence was clear that the weapon was fired at a range of less than 10 cm, which means that each of the applicant's estimates of more than 50 feet, 20 to 40 feet and 30 to 40 feet was significantly inaccurate. One possible view of this inaccuracy is that the applicant did not know the distance, because he had not been there, and was simply guessing. On the other hand, however, if, as the applicant told police, he had been apprised of the evidence given at the coronial inquiry, and if he had not known the distance, he would surely have repeated what had been said in evidence at the inquiry. There was no reason to guess that the distance was as great as he asserted unless his answers were informed by other considerations.

61 In my opinion, there is an obvious and plausible explanation for the applicant's estimates of the distance between him and the victim when he fired. I do not consider that the inconsistency between those estimates and the true situation indicates that the substance of the confession was unreliable. Although the applicant was confessing to killing the security guard, he was conveying the idea that this had been the fluke outcome of a shot fired with uncertain intent from a considerable distance. To that extent it was an exculpatory account; or at least the applicant was likely to have viewed it in that way. It was an understandable variation from the truth of the matter - that is, that the victim had been shot in the back at very close range.

62 The applicant stated that (1) the weapon which he had with him at the time was a .22 pistol, which had been cut down from a .22 rifle; (2) it was a 9 or 11 shot semi-automatic, with a magazine underneath the trigger; (3) on discharge, the shell ejected to the right; (4) a shell ejected that night, but he did not pick it up; (5) he did not find a spent shell in the chamber later on; (6) he was using long rifle ammunition; and (7) he thought that the weapon had been too big to go in his pocket.

63 There was plain evidence that searches of the area had been conducted by police in darkness and later in daylight but that no shell casing had been found.

64 It follows that there was a discrepancy between what, on the applicant's account, was there to be found, and the fact that nothing was found. But, of itself, that could not mean that the jury was bound to acquit. The jury might have concluded that for some reason the shell did not eject; or that the applicant had retrieved it; or simply that it had not been found.

65 I have already referred to the gist of the doctor's evidence. It left open the possibility, if not the probability, that the confession represented the truth of the situation. Even taking the doctor's opinion at its highest, it did not mandate a conclusion that the confession was unreliable. The confession contained a good deal of circumstantial detail which tended in favour of its reliability.

Acquisition of knowledge about the killing from other sources

66 The killing was mentioned in the press at the time. The police did prepare a flyer. Some Kmart staff knew about the door coming off its hinges. There was an inquest. The applicant stated that these were the sources of his information, together with what he said he was told by 'Mark' (who had attended the inquest) at the TAFE canteen.

67 But that explanation was unsatisfactory and incomplete in a number of respects. I mention, though the list is not exhaustive, the following: First, the applicant volunteered the kind of ammunition which he had used that night - .22 long rifle. That had never been publicly revealed. It was a matter upon which the Crown relied. I deal with it extensively later in these reasons. Second, the applicant did have a shortened .22 weapon at the time. Third, the applicant gave an account of how he had set about removing the pins in the door hinges. It accorded with tool marks found at the scene, and his explanation of what he did was compatible with his acquired knowledge as a building inspector. It was also compatible, as I have earlier explained, with what he said about the state of removal of the hinge pins. Fourth, the applicant gave evidence that he rarely read newspaper accounts of murders, or watched television. But he said that he had read and heard about this killing, and having last turned his mind to it in the late 1980s he claimed to have brought it to the forefront of his mind in August 2004, this enabling him to confess because he wanted to get off the streets and die. Fifth, the applicant suggested that Dr Grounds might have stimulated his memory about this particular killing. But Dr Grounds effectively denied it. Sixth, the applicant claimed to have guessed certain details about the layout of the scene, and about what the victim had been wearing, which he provided during the interview. Guesswork was an improbable explanation for such detail, particularly the layout of the scene. Seventh, having explained that his purpose in confessing was to get off the streets and die, the applicant also gave evidence that he had worked out a strategy in the police car the object of which was to hoodwink the police so that he would later be able to prove that he had not committed the murder. Eighth, although it is a somewhat different point, the applicant agreed in cross-examination that 'being in psychosis' did not stop all thought processes, or telling the truth when it suited him.

68 When interviewed, the applicant stated that he had attended a police station not long before he rang Crime Stoppers. He had said that he had killed someone. But he had been, in effect, shown the door.

69 It was not established that he had attended a police station.

70 When interviewed, the applicant said that, when he was aged 19 or so, he had been involved in petrol-bombing a service station. Cross-examination of a police witness revealed that the claim had been investigated but that nothing had come of it.

71 Assuming that the applicant did not attend a police station as he claimed, or that there had been no petrol-bombing, in my opinion the important features of his confession were not thereby impugned. The same may be said in respect of the variant accounts which he and Dr Grounds gave of a conversation, not long before 3 August 2004, in which he said that he had killed someone.

72 Examination of the whole of the evidence has satisfied me that this was not a case in which the jury was bound to acquit. True it is that the confession was central; and if its reliability had been successfully impugned, a finding of guilt would have been unsafe. But despite counsel's submission at trial that it was riddled with errors, I consider, for the reasons which I have given, that the reliability of the essence of the confession was not so impugned. That was particularly so when the applicant was really unable to explain a number of matters recounted by him which were not in the public domain.

73 In opening the Crown case, the prosecutor told the jury about several matters not in the public domain which pertained to the killing, matters such as would be known by the police and the killer. The prosecutor referred to interference with the hinge pins and the calibre of the bullet - that is, .22. The prosecutor then referred to the record of interview saying this:

... some of the detail that the accused had told the police about was never in the public arena, such as the calibre of the gun, such as the door pins being removed, and there are other matters that will come out during the trial which we will submit to you at the end were never in the public arena and could only have been known by the killer.

It may be suggested that the accused could have obtained his detailed knowledge of the murder from reading the newspapers or watching television. We'll call evidence to the extent of the publicity which appeared in the newspapers, and if necessary television, in the days after the murder and at the time of the Coronial inquest that was heard, held in relation to this matter in June of 1986, and it will again be our submission to you that you will conclude that the only killer of Mr Zigante could have been Mr Arnott because he was the only person who could have made the confession with such detail that he did and knowing the detail that he did because he was the murderer.

74 In his opening address, counsel for the applicant stated, in substance, that the applicant had made a false confession, the detail of which he had acquired from material in the public domain.

75 No specific reference was made in either address to the particular kind of ammunition used in the killing - that is, long rifle (LR) ammunition. In his record of interview, the applicant had said that he could not name the brand of ammunition, but that it had been long rifle.

76 In the Crown case, the record of interview was put in evidence. It was also established that the fact that the ammunition was LR was not put into the public domain.

77 Also in the prosecution case, evidence was given by a police firearm and toolmark examiner, Allan Pringle. In examination-in-chief, he stated that:

(1) There are three main rim fire cartridges - short, long and long rifle;

(2) A bullet which he examined, and which was said to be the bullet removed from the victim's body, was a .22 LR round;

(3) In 1985, 18 common brands of .22 weapons were capable of discharging the bullet he found.

78 The witness was cross-examined about the different kinds of .22 ammunition this way -

COUNSEL: The final issue I want to take to you Mr Pringle is your evidence in relation to 22-calibre ammunition and you have spoken of three types being the short, the long and the long rifle, agreed?---Agreed, yes.

I want to suggest to you the 22 short is mainly used as a quiet round for practice by sporting shooters, for example the 22 short was used in Olympic rapid fire pistol events?---Yes, that's the purpose of the design, yes.

The 22 long I want to put to you is essentially, and has been for years, essentially obsolete. What do you say to that as a general proposition?---As a general proposition they are still available on the shelves for purchase, predominantly by target shooters.

You don't mean Target Australia?---Pistol shooters.

I want to put to you that there are no new firearms designed specifically to use it, no new firearms are made these days to specifically use 22 longs; do you agree with that?---No, that's because the chamber is the same size as the 22 long rifle.

So it is a true statement though, isn't it, they are not specifically made for 22 longs, firearms?---No, it is not a correct statement, a 22 long can be fired in a long rifle firearm, so it is not an obsolete chamber.

There are no guns - - -

HER HONOUR: [Counsel] what is the relevance of the present situation and whether guns are now obsolete not.

COUNSEL: It is more the antiquity of longs.

HER HONOUR: What's the relevance of this issue today, in 2006?

COUNSEL: It is more the issue in 2004, Your Honour, when certain statements were made by my client to the police during the record of interview which I have every confidence the prosecutor is going to repeat.

HER HONOUR: Your questions are about 2004 as opposed to 2006?

COUNSEL: Yes.

HER HONOUR: Just make it clear what period your questions relate to. So you better go over those things, because they were premised on today.

COUNSEL: As of 2004 in relation to the 22 short mainly used as a quiet round for practice by the recreational shooter, for example, the 22 short was used for the Olympic 25-metre rapid fire pistol event up until 2004; any issue with any of that?---No.

I want to put to you that as at 2004 essentially the 22 long was regarded as obsolete?---Some authors may classify it as an obsolete cartridge, however, various manufactures are still producing them and they are a cartridge - - -

Which can be bought?---Can be, purchased yes.

For example, the three largest producers in the market have ceased production of 22 longs as at 2004, not in that year, but I am saying by 2004 the three largest manufacturers of 22 ammunition were not producing, manufacturing 22 longs; do you agree with that?---I have no doubt about that, no.

But smaller manufacturers such as - do you know CCI?---Yes.

And Aguilar?---Yes.

They still produce 22 longs?---Some do, yes.

I want to put to you it was the development of the 22 long rifle bullet that basically assured the 22 long's path to obsolescence; do you agree with that, because I am putting to you it is the most commonly used 22 in the world.

HER HONOUR: Let him answer [counsel].

COUNSEL: Yes.

HER HONOUR: You asked him if he agreed with the proposition that it was the development of the 22 long rifle - - -

COUNSEL: Not the rifle, the 22 LR bullet that really led to the development of the obsolescence of the long because people go for the LRs?---Yes, the popularity did exist with the long rifle calibre.

Do you agree that in terms of units sold the 22 LR is by far the most common in the world today sold?

HER HONOUR: Common ammunition?

COUNSEL: Yes?---Common cartridge, yes.

79 The obvious purpose of the cross-examination was to undermine the Crown's reliance on the applicant having said in the record of interview that the ammunition he had used was LR. It was clever cross-examination, but it said nothing about how common the different kinds of .22 ammunition had been in 1985. Counsel's statement that he was focusing on 2004, when the interview was conducted, was also a furphy. The applicant stated that he had not had a gun since 1988. The evidence of his father and mother gave some support to that statement. Assuming its truth, a proposition, in effect, that the applicant had founded what he said to the police about the kind of ammunition which he had used in 1985 by reference to LR ammunition being the most common kind of ammunition in use in 2004, or 'today sold', was unsound.

80 Mr Pringle was not re-examined as to what kind or kinds of .22 ammunition were most in use in 1985. Such re-examination might have been permissible as arising out of cross-examination. On the other hand, the prosecutor was entitled, I consider, to make the forensic decision that such re-examination, even if permissible, was unnecessary because the cross-examination had been irrelevant.

81 The applicant gave evidence in the course of which he repudiated his confession. He stated, inter alia, that his knowledge that the murder weapon had been .22 calibre had been gained from what he was told in the TAFE canteen by 'Mark', who said that he had attended the inquest.

82 The applicant was not taken by his counsel to the reference in the police interview to the ammunition being LR and asked for an explanation why it was he had said such a thing.

83 The applicant was cross-examined about his sources of information concerning certain matters to which he had referred in his interview. Concerning the weapon and the ammunition, there was this cross-examination:

PROSECUTOR: Just going back to the conversation with Mark for a minute, did he tell you about the weapon that had been used to kill the security guard?---No, not that I know of.

Did he tell you the type of weapon that the bullet had been fired from?---Not that I know of.

Did he tell you anything else about the ammunition that was used?---The type of weapon? Yeah, a 22. That's what a 22 is, it's a type of weapon. That's the type of projectile, the bullet, and it goes into a 22 gun, or a .22.

He didn't tell you anything else about the ammunition that was used, did he?---Not that I'm aware of.

And I suggest that last time you said that the sole source of your knowledge about the calibre of the cartridge used to murder the man was Mark, and you agreed with that when that was put to you?---I think I clarified that a bit later on. I think I said - - -

PROSECUTOR: I put it to you in this way. 'You say that from that day on which you received that information', that's the information from Mark, 'until today - - -

HER HONOUR: What page is this, [counsel]?

PROSECUTOR: Page 951, Your Honour, line 24.

HER HONOUR: This is the last trial you're talking about?

PROSECUTOR: Yes, Your Honour. I'll put it to you again. This was put to you: 'You say from that day on which you received that information until today, the sole source of your knowledge about the calibre of the cartridge used to murder this man was Mark?' Answer: 'Yeah, because 22s are common. It didn't strike me as not being so because 22s are very common, a very common rifle shot. There's probably - there's hundreds. Well, there's many thousands of them over Victoria.' Then it was put to you, 'Just grapple with my question. Do you say that the sole source of your information about the calibre of the bullet which was used to kill Mr Zigante was Mark?' Answer: 'To the best of my knowledge, yes.' 'And that you had no other source of information about the nature of that fatal bullet?' Answer: 'Yes, the bullet itself, no, as far as I know, as far as I know, Mark was the only one I heard it bout.' Were those questions asked and evidence given by you?---In regard to supposedly more concrete information as to Mark going to the inquest - - -

HER HONOUR: Mr Arnott, you have just been asked were you asked those questions and did you give those answers?---Yes.

84 This cross-examination was partly concerned with the witness' present evidence, and partly with evidence he had given at the first trial. As to the latter, he agreed with the questions had been asked and answers given. But he was not asked to agree that such answers were correct.

85 Plainly, the point of the cross-examination was to show that the applicant had not been provided with information, before his police interview, that the bullet which killed the victim was LR kind. In that, the cross-examination succeeded.

86 The applicant was not re-examined as to why it was that he had volunteered that the bullet was of the LR kind.

87 At the close of evidence, counsel for the applicant stated that he anticipated that the prosecutor would rely upon his client having volunteered that the bullet was LR. He submitted that, whatever be the reason, it was the fact that the prosecutor had not cross-examined the applicant 'to see if he could explain how on earth he could come up with it being an LR if he's not the murderer'; that his client had 'been denied that opportunity' of addressing that question. Counsel submitted that the prosecutor had been obliged to take the matter up - as apparently had occurred in the first trial.

88 The judge observed, and it was the fact, that counsel for the applicant had examined his client about a number of matters with a view of showing how he acquired particular information contained in his police interview; but that he had sought no explanation about his client volunteering the kind of ammunition which had been used to kill the victim. Counsel's response was that his complaint was independent of what he had or had not done.

89 Counsel for the applicant submitted that, in the circumstances, the prosecutor could refer to what the applicant had said about the kind of ammunition in his interview, but that he should be prevented from raising an argument that it was significant - an argument 'as to how it should be used'.

90 The judge raised the possibility of the applicant being recalled. Counsel for the applicant resisted that course. It would, he said, '[draw] too much attention to the issue'.

91 The prosecutor submitted that the obvious purpose of the cross-examination of Mr Pringle had been to cut the ground from under an argument that the applicant's statement about LR ammunition was of any significance. He argued that the rule in Browne v Dunn[36] did not assist the applicant. This was not a case in which the applicant was not on notice that the particular matter was an issue in the trial. It was not the prosecutor's duty to make out the defence. Further, no question arose of seeking to contradict evidence given by the applicant in evidence-in-chief - because he had given no pertinent evidence. Further again, at the previous trial counsel for the applicant had sought to elicit in re-examination an explanation from his client why it was that he had referred to LR ammunition. Counsel had plainly decided to take a different course in this trial. The prosecutor submitted, again, that he had obtained the only answer he needed - that the applicant had not been told by 'Mark' that the bullet was LR.

92 In reply, counsel for the applicant submitted that in a criminal trial it was not for the prosecutor to be 'sort of' game playing. He relied upon R v Rajakaruna (No 2)[37] as a statement of Browne v Dunn adapted to the criminal law. He referred also to R v Demiri,[38] Bulstrode v Trimble[39] and MWJ v The Queen.[40]

93 The learned judge ruled against the submission. She said this:

I am not persuaded by the submissions made in support of the application by Counsel for the defendant. Essentially, he asserts that Senior Counsel for the prosecution should have put it specifically to Mr Arnott that he had failed to give evidence to support his assertion that he knew of the type of .22 calibre bullet used to shoot Mr Zigante from a source other than his own knowledge. The rule in Browne v. Dunn is not, in my view, applicable. This is not a case of a witness being denied the opportunity of explaining evidence adduced by the opposite party.

The conclusion which the prosecution will ask the jury to reach will be based upon the accused man's statement to police as to the type of calibre bullet used in the killing and his description of the information obtained from various sources by himself. The accused man was given the opportunity by Senior Counsel for the prosecution to give evidence as to the source of his relevant knowledge. As it had been put to him that a particular person had not given him the relevant information, it would have been open to Counsel for the defence to ask in re-examination as to who was the source of the knowledge. The matter could also have been dealt with in examination-in-chief.

In my view, the defence was put on notice of the issue in the prosecutor's opening. The evidence of Mr Pringle as to the different types of .22 calibre ammunition, followed by cross-examination on the very point, together with the evidence from the accused man specifying in the record of interview the type of .22 calibre, show that the issue should not be one which takes the accused man by surprise, in any event.

94 Counsel for the applicant then applied for the discharge of the jury on the ground of high necessity. He contended that permitting the trial to go forward would visit a 'palpable unfairness' on his client. That was because neither the prosecutor nor he had broached the issue with his client. Asked by the judge whether the situation might be remedied by the applicant being recalled for further cross-examination, counsel now responded that if the discharge application failed he might make such an application - but not if the prosecutor was going to have another opportunity to cross-examine.

95 The discharge application fizzled out when counsel acknowledged that it depended upon what the prosecutor said in his final address. The judge rejected it as premature. No application was then pursued for the recall of the applicant.

96 The prosecutor did lay some emphasis, in his final address, on the applicant having volunteered that he had used LR ammunition. Thus:

We know that the gun used was a point 22, we know the bullet was a point 22 long rifle ammunition. We know that that wasn't a fact, the long rifle ammunition wasn't a fact in the public arena, the point 22 was.

Of course, although he had the chance, never mentioned the fact that it was long rifle information, who told him that. The only information he said he got from Mark who'd attended the inquest was that it was a 22 and, of course, that was the only information that came from the inquest. That was also information that was in the wide arena and also information that the killer himself would know, what type of bullet, what type of ammunition was used.

The accused said he took a 22 pistol with him, that's at Question 64. A 22 was indeed the murder weapon.

We know that. There was no publicity about the calibre of the bullet used to kill Mr Zigante. It was mentioned only once at the inquest and we know, of course, that the bullet was not only a 22 but it was long rifle ammunition and that was raised by the accused at Question 646. Mr Pringle, you will recall, gave evidence that it was a long rifle bullet and that in fact there were three different types, short, long and long rifle that were used in the 22. That fact, we'd suggest to you, was only known to the murderer and the police. There'd never been any publicity about it. It wasn't mentioned at the inquest, wasn't mentioned in the newspaper or TV reports and, of course, Mark, mysterious Mark who attended the inquest, Mark who attended the inquest in 1986, all he was able to say it was a .22 bullet. There was no mention of it being long rifle from Mark. Of course, it wasn't mentioned at the inquest. That's something that the accused knew that we say only the murderer could have known.

At Questions 182 and 646, he admits that he used .22 long rifle ammunition to kill the guard. You will recall the evidence of Mr Pringle in this regard that it was in fact a long rifle 22. That's a critical admission. There was no publicity about this. Even at the inquest, only a .22 was referred to. Only the murderer would have known this. There are different types of .22 calibre ammunition, you have heard. .22 short, .22 long, .22 long rifle. How could the accused have known this unless he had got the ammunition, purchased it, or loaded the gun? He's a man familiar with firearms. This was not a lucky guess. He knew the type of ammunition because he was the one who fired the shot at Mr Zigante.

It is not relevant that there might have been lots of long rifled (sic) calibre cartridge in the community in 1985. What is significant is the fact that the accused knew about the cartridge, the type that killed Zigante and no one else in the community knew that, apart from the police. If he was just guessing about the bullet that killed the deceased, he might have easily guessed it was short or long calibre. Another chance, another lucky guess; a lot of lucky guesses in this case. You will remember Mr Anastasiadis's evidence in relation to the inquest depositions that no mention was made of the bullet being long rifle at the inquest.

97 After the prosecutor had addressed, counsel for the applicant renewed his application for the discharge of the jury. He relied upon four grounds, the last of which was the prosecutor's reliance on the LR point. He re-stated the submission that the unfairness derived from neither counsel having broached the issue with his client. He said also that -

I can tell your Honour that if I lose this discharge application I will be making an application for my client to be recalled.

98 The learned judge rejected the discharge application. She stated that she considered that the substance of the application, so far as it concerned the LR point, had been dealt with in her earlier ruling.

99 There followed, discussion about recalling the applicant. Counsel made what he described as a 'conditional application' to recall his client. It is apparent that he was seeking to have his client recalled on a basis which was entirely favourable to his client. The judge, understandably, stated that she was not going to be pinned down until an application was actually made. Counsel then said, after taking instructions from his client, that he had no application to make.[41]

100 I should finally mention the address of counsel for the applicant, so far as it is presently relevant. Counsel dealt at some length with what was in the public domain. Then, so far as the LR point is concerned, he said this:

He identifies one really, what he says critical piece of information which he says is the fact that Arnott says, 'It was an LR' and he got that right. An LR is the abbreviation for long rifle.

... the prosecution says, as well as on the other material, on this particular piece of information, it's that critical because he got it right and you could only get it right if you had bought the bullet and you were the murderer.

Now, you have been witness, members of the jury, to the process that's gone on here. This man put himself, the accused, in the witness box and, effectively, says to you 'I made that prior statement to the police; that is, I made that confession to the police; both in the, I'll call it the arrest conversation and the recorded conversation, the record of interview, and it's untrue.' That's what he said. Puts himself in the witness box and says 'Yes, I made it, Mr Rose, but it's untrue. Cross-examine me on it, if you wish.'

Of all the things that he was not cross-examined on about was what, do you think? Knowing, it seems, that he was going to go to the jury and invite them to convict on the strength of this piece of evidence that shows him to be the murderer. Was there one question about the LR in cross-examination? No.

What my friend hangs his hat on, I assume, in defence of the position, he would argue, is at or about p.1387 I (sic) asked him these questions: Question: 'Just going back to the conversation with Mark for a minute. Did he tell you about the weapon that had been used to kill the security guard?' Answer: 'No, not that I know of.' So that's about the weapon. Question: 'Did he tell you the type of weapon that the bullet had been fired from?' Answer: 'Not that I know of'. Question: 'Did he tell you anything else about the ammunition that was used?' Now, the answer is recorded here as 'The type of weapon?'. It's not coming from Mr Rose, according to the transcriber. So I will read it out. Question: 'Did he tell you anything else about the ammunition that was used?' Answer: 'The type of weapon, yes, a 22. That's what a 22 is, it's a type of weapon, that's the type of projectile, the bullet, and it goes into a 22 gun or a 22'. Question: 'He didn't tell you anything else about the ammunition that was used, did he?' I'm not sure whether that's puttage or it's just a, sort of, negative way in which to ask a particular question, because you're trying to apply your trade as best you're able to as a trained barrister for 30 years. Question: 'He didn't tell you anything else about the ammunition that was used, did he?' Answer: 'Not that I'm aware of'.

So, firstly, the answer is it's not known, full stop, end of sentence. 'Not that I'm aware of', and would that not have been an opportune time, not just opportune, the appropriate time if you have in your head 'I'm going to the jury' and tell him then (sic) 'Convict on the LR'. Convict on the LR because he got that right. Now, I'm going to tell them 'Well, there's no explanation for the LR, so he must be the murderer'.

That's what this whole process is about, giving the person, of all persons, the accused, the opportunity to answer the case that you're going to put to the jury.

'How on earth would you come up with the LR for example, Mr Arnott, if Mark only told you it was a 22?' And you would then have an answer. Whether it was a credible answer, whether it was an incredible answer, at least he would've had the opportunity to address the issue that my friend wants you to convict him on. It's extraordinarily unfair is what I put to you. That it happens in the State of Victoria in this day and age. My friend is playing ducks and drakes with a man who is on trial for murder and no doubt argues, 'I raised the issue with him fairly and squarely'. This man can do no more than get in the witness box and be cross-examined about these matters and then you make your assessment. But to specifically not cross-examine him on that pivotal piece of information that my friend identifies in his address is critical, it is one of the complaints I will speak of tomorrow that I have in relation to this - not this - part of this proceeding as it involves some conduct by my friend the way he's conducted himself but more particularly the police investigation. Put your case to the witness, let him answer it. Whether you like the answer or not, whether you think it's a good answer or a bad answer and then mount your argument to the jury.

Seriously, what do we know of LRs? My friend runs this argument by you again without going to the evidence at all, it could've been a short, he could've chosen a long or he could've said a long rifle, they were all there. He had equal choice as it were and what, he just lucked in. You know from the cross-examination of Pringle that that is not right. You know that the shorts have mainly been used in target shooting in events like the Olympic Games as an example. You know that the bullets developed from hundreds of years ago or in the 1800s, shorts, longs, long rifles and Pringle himself accepts that I think it's the three or the four largest manufacturers of bullets in the world no longer produce - have not been producing longs. In that sense, they are largely obsolete and that the long rifle is the vastly predominant cartridge on the market. That's the context in which a long rifle can be identified by Arnott. Combine that with though, if it was a person who was totally unfamiliar with firearms and ammunition, then you might think well, that's quite a piece of information to identify but you know as the Crown has laboured quite a number of times, I'm not sure why the Crown keeps labouring, he was familiar with firearms. Does this mean therefore he's the murderer, therefore he's the shooter, because he was raised with firearms? Because he might've sawn off a rifle. When you know on the evidence, according to his own father that that was a very common practice in the country, very common practice for, at least for the reason of storage when you're in a car, so you could put it under the seat.

But any person who knows anything about bullets and guns, 22s in particular, if you're identifying a 22 LR, do you know what you're doing, members of the jury? You're speaking of - and this is no disrespect to General Motors Holden, you're speaking of the Commodore of bullets.

The long rifle, the 22, is the vastly predominant bullet in the market place. So anyone who knows anything about, has any experience about bullets and firearms, that's what you're going to say. That's the Commodore of bullets. It's not some peculiar bullet that irresistibly leads to the conclusion, 'Well, he must have been the shooter' because, as Steve Martin said in the Three Amigos, 'There's a plethora of 22 long rifles, that's the bullet.' But it wasn't even put to him to explain which is extraordinary.

At this stage I just want to quickly go to Pringle, 931, 'The final issue I want to take you to, Mr Pringle, is your evidence in relation to 22 calibre ammunition and you spoke of three types being the short, the long and the long rifle, agreed?' Answer: 'Agreed, yes.' At 932, 'As of 2004 in relation to the 22 short, mainly used as a quiet round for practice by the recreational shooter, for example the 22 short was used for the Olympic 25 metre rapid fire pistol event up until 2004, any issue with that? Any issue with any of that?' 'No.' 'I want to put to you that as at 2004', 'I'm concentrating on 2004 because that's when he's making this confessional statement. I want to put to you that as at 2004, essentially the 22 long was regarded as obsolete?' Answer: 'Some officers may classify it as an obsolete cartridge, however various manufacturers are still producing them and they are a cartridge, can be purchased.' Question: 'For example, the three largest producers in the market have ceased production of 22 longs as at 2004, not in that year but I am saying by 2004 the three largest manufacturers of 22 ammunition were not producing, manufacturing 22 longs, do you agree with that?' 'I have no doubt about that, no.' The point I'm getting to, is really if you remove the shorts and the longs from the equation because longs are really, essentially, obsolete and the shorts are used for recreational pistol target shooters such as Olympic competitors. There is only left and if you'd been raised and brought up, as I laboured the point yesterday, and I've got to labour it again today because of the forceful nature of the point my friend tries to make, in the context of not putting it to him when he had the opportunity, then it's not a readily identifiable feature is the point. This man was raised with guns and ammunition, a 22 long rifle is like a Holden Commodore to this man. To anyone who knows anything about bullets and 22s.

Worse case scenario from the defence viewpoint would be, if you thought realistically viably there were three types, shorts, longs, (indistinct) rifles that he realistically had a choice of saying, and that's ignoring that evidence of Pringle that you really, I say, you should forget the other two because the long rifle was the predominant one. The long is obsolete. If you go to ignore all that and I'm sure you won't, but if you were and you say, well, he had a choice of three you don't convict someone in the State of Victoria for lucking in, to repeat my friend's phrase, with a 33 and a third per cent chance. It doesn't warrant a conviction for murder because he lucked in by guessing the right one.

He had a 33 and a third per cent chance of getting the right one. If you take the obsolete long out of the equation then he had a 50 per cent chance of getting the right one, this case is not about on the balance of probabilities, what's more likely than not. It's not about that. That's entirely the wrong approach to deliberating.

101 Counsel for the applicant submitted that the rule in Browne v Dunne is fundamental to an adversarial system of justice. It operates in criminal proceedings and applies to both prosecution and defence. A witness must be made aware how his or her testimony is being challenged, and on what basis. The application of the rule must be considered, in a criminal matter, having regard to fundamental principles such as the burden of proof and the presumption of innocence.

102 In the present case, counsel further submitted, the prosecutor breached the rule by not cross-examining the applicant about a matter of significance to which he later referred in his closing address. The judge's ruling that there had been no breach of the rule in Browne v Dunn was erroneous. Fairness had demanded that the applicant be cross-examined about the matter. It was no answer that the applicant could have been examined or re-examined about the matter. The judge had erred in relying upon that circumstance in her ruling - for it had placed a burden on the applicant which, in a criminal trial, he did not bear. For the same reason, prospect that the applicant might be recalled to give further evidence was beside the point.

103 In the event, counsel submitted, the applicant had been deprived of the opportunity to counter or reject a matter which was to become a central feature of the prosecutor's closing address, even though it was not in fact of the significance which the prosecutor attributed to it. The applicant had been denied a fair trial, and a substantial miscarriage of justice had eventuated.

104 For the respondent, it was submitted that it was clear from the outset that the Crown proposed to support the applicant's admission of murder in the record of interview by disclosures which he made of matters only known to the investigators and the offender. One of those matters was that the ammunition used to kill the victim was LR. The applicant had been cross-examined in a way which gave him the opportunity of explaining how he had learned that the ammunition was LR. There had been no unfairness in the course taken. The judge's rulings had been correct, and there had been no miscarriage.

105 The rule in Browne v Dunn, rooted in fairness, does apply to criminal proceedings. The authorities show that it is applied with more circumspection against an accused.[42] That is not this case. The question here resolves itself into this: does the rule dictate that (1) where an accused makes a confession in the course of

which he refers to a circumstance which he has reason to believe the prosecution will rely upon to say that the confession was true,[43] and (2) where the accused later gives evidence to the general effect that the confession was false but says nothing about the particular matter, the Crown is obliged to cross-examine the accused about that circumstance rather than relying upon it having been stated and remaining unexplained? In my opinion, the rule has no application in such a case.

106 No testimony of the applicant was sought to be controverted. The applicant, indeed, steered clear of the particular topic in evidence in chief. If the jury was satisfied that his confession was voluntary and not false, the applicant's only relevant statement was that the ammunition used was LR - a statement which was objectively true, which the Crown asserted was significant, and which the applicant knew the Crown would so assert. There was no unfairness in the applicant not being offered the opportunity, in cross-examination, to explain how it was that he had made what the Crown alleged was a significant admission.

107 Further, the applicant was cross-examined to show that he had not learned from any other source that the ammunition used had been LR. This served to emphasise what the Crown alleged was the significance of what he had said in his record of interview. The cross-examination arguably authorised re-examination directed to the question why it was that the applicant had referred to LR ammunition. To the extent that any re-examination had elicited an explanation for what the applicant had said, such explanation would simply have been an extrapolation of the applicant's evidence in chief that his confession had been false.[44] It is no doubt correct to say that the applicant was not obliged, either in examination in chief or in re-examination, to give evidence explaining the allegedly incriminating statement. But it does not follow that to say that he might have done so would be to impose upon him a burden inappropriate to a criminal proceeding.

108 The conclusion that there was no breach of the rule in Browne v Dunn is further underlined by the course taken by the applicant's counsel. By cross-examination of a Crown witness he sought to lay the groundwork for an innocent explanation in final address of what his client had said in the record of interview. Then he steered clear of asking his client any questions about the matter. Having failed in his attempts to have the prosecutor confined in his closing address, he then sought to make use of his cross-examination of the Crown witness in his final address - and was permitted to do so despite its doubtful relevance.

109 In my opinion, the authorities cited for the applicant do not tell against my conclusion. Counsel cited R v Birks[45] only for the proposition that the rule in Browne v Dunn applies in criminal proceedings; likewise R v Manunta.[46] MWJ v The Queen[47] was concerned, as I said earlier, with amelioration of the operation of the rule against an accused person. There, the question was what significance, if any, could attach to the fact that Crown witnesses were not cross-examined as to inconsistencies in their accounts. In R v Rajakaruna (No 2),[48] the question was whether the trial judge, having perceived a breach of the rule in Browne v Dunn by counsel for the accused (who advanced a hypothesis in closing address which had not been put to the pertinent Crown witnesses) had given such a strong adverse direction as to obscure the burden resting upon the prosecution. In R v Thompson,[49] the prosecutor, in breach of the rule in Browne v Dunn, did not cross-examine the accused so as to give him the opportunity to explain why matters of which he had given evidence had not been put to Crown witnesses;[50] and where, the prosecutor having relied upon those circumstances to attack the accused's credit, the trial judge gave no direction to the jury as would assist it to deal with the matter raised. In Hart,[51] the prosecutor asked the jury to disbelieve alibi witnesses called for the accused although he had not cross-examined them. The Common Serjeant who heard the case gave no direction to the jury about the matter.

110 On Monday 18 December 2006, the fourteenth day of the trial, the forelady provided a doctor's report dated (Saturday) 16 December to the learned trial judge. It stated that -

[A] has been a patient of this clinic since childhood. She is currently doing jury service. Unfortunately, she is not copying (sic) mentally and will have to leave. The case is causing her significant anxiety and she is not able to perform her work as a juror.

111 The judge invited counsel to make submissions. She indicated a tentative opinion that the juror should be discharged without further enquiry.

112 Counsel for the applicant opposed the suggested course. He made the point that the juror was not plainly seeking to be discharged.

113 Counsel referred also to events which had occurred on Thursday 14 December. On that day the judge had told the jury that the trial was likely to run into the Christmas and New Year period. The forelady was one of three jurors who had told the judge that they had made arrangements for late December and/or early January. The forelady had told her Honour that she had a paid for holiday between 26 December and 9 January.

114 Also on 14 December, the judge had told the jury that she would deal with the issue of the Christmas break early in the week beginning 18 December, and that jurors should provide details of what arrangements they had made.

115 Returning to the events of 18 December, counsel for the applicant also sought the attendance of the certifying doctor; and he stressed that the applicant should have the verdict of twelve jurors on a count of murder.

116 Although her Honour had earlier said that she thought 'it would be very difficult to go behind a doctor's report', she determined that the doctor should attend, and she requested the forelady to obtain the doctor's attendance. I pause to mention two matters. First, the forelady consented to the doctor so attending. Second, applicant's counsel agreed that there was no question of the doctor being subpoenaed. The doctor either came to court, or she did not.

117 A little later, the prosecutor told the judge that the doctor stated that she would not attend court. Apparently, the doctor was not in her rooms that day; and, having been contacted, had stated that she did not feel it was necessary to give further evidence, and that the letter should be explanatory.

118 The judge then indicated that she proposed to discharge the juror. She stated that whether or not the cause of the juror's stress was the inability to go on a holiday -

... this juror is likely to be distracted, unable to concentrate on her task, and this may have ramifications for the defence and/or the prosecution.

119 Applicant's counsel opposed the course which her Honour had indicated she intended to take.

120 The judge then ruled that the juror should be discharged on medical grounds. This is what she said:

Having received a letter from Dr Lyndal Dennis of the Lincolnville Clinic dated 16 December 2006 to the effect that the foreperson has been a patient of her clinic since childhood; that the foreperson is not coping mentally and will have to leave the trial; that the case is causing her significant anxiety and she is not able to perform her work as a juror, I have decided that the foreperson should be discharged. Notwithstanding the doctor's present refusal to attend the court and my possible power to compel her attendance, I am of the view that whatever the outcome of my questioning of the doctor might be, this juror is likely to be affected in such a way as to be unable to perform her duties as a juror in the manner in which they ought to be performed. In my view, this could have an impact on either the prosecution or the defence and the juror should be discharged and I will discharge the juror at this point.

121 After discharging the jury, the judge stated that in determining to discharge the juror she had taken into account, but had omitted to mention, her observations of the juror. That led to a complaint by applicant's counsel that the defence should have been put on notice about the matter.

122 Counsel for the applicant then applied for the discharge of the jury on the ground that there was a 'high degree of necessity, or high need as the authorities show'. He particularly relied upon (1) this being a murder trial, (2) a trial before twelve jurors being 'the preferred option', and (3) that a retrial would not, in the unusual circumstances of this case, involve stress and trauma for witnesses 'other than perhaps the experienced professional witnesses, the police and ... Morgan and Boles to a lesser extent'. He also speculated that the forelady may have spoken by telephone to other jurors over the course of the weekend about her proposed course; or otherwise have communicated with her fellow-jurors about the matter. Counsel submitted that such a communication might tend to cause the other jurors to treat their task less seriously. At least, it would have been a distraction.

124 Counsel for the applicant then drew the judge's attention to the need for a direction under s 44 of the Juries Act 2000 (Vic) that the trial should continue. He referred to R v Sharp.[52]

125 The judge gave an appropriate direction (although she called it an order), and then ruled that there was no high degree of need to discharge the jury. This is what she said:

HER HONOUR: Application has been made for the discharge of the jury in circumstances in which one juror has been discharged .

The power of the court to discharge the jury should only be exercised where there is the requisite high degree of need (see Windsor v. R. (1886) LR 1 QB 390, per Earle, CJ at 394).

The court has the power under s.43 of the Juries Act to discharge a juror. It is implicit in s.44(3) that a criminal trial may continue after the discharge of a single juror.

The trial is well advanced. It was estimated that the Crown case would have been presented by Friday last and it is now anticipated that the Crown case will finish today.

Counsel for the defence expressed concerns about the discharged juror mingling with and communicating with other jurors after her discharge, but Mr Straughan my tipstaff has told the court that he escorted her to the door shortly after the jury returned to the jury room and was with her in the meantime. Counsel for the defence has raised concerns about the possible communication between the discharged juror and other members of the jury as to how she intended to obtain her discharge from the jury. He expressed the view that such a communication might reduce the seriousness of the role of the juror. Insofar as he is concerned about the jurors in this case, I do not regard the possibility of such a communication as likely to have any deleterious effect on the performance of their functions by the remaining jurors.

In any event, as senior counsel for the prosecution pointed out, the juror at all times requested that the nature of the communication received from the doctor should not be disclosed to her fellow jurors and she was questioned about her situation in their absence.

When she was discharged the remaining jurors were only told that it was for medical reasons, and she showed signs of distress when she was being discharged in their presence. Insofar as I could judge, there was no indication given in the court that she treated the matter as trivial or did not regard her obligations as a juror seriously.

In all the circumstances, counsel for the defence has failed to show the requisite high degree of need for the discharge of the jury. I reject the application.

126 Counsel for the applicant approached the matter on the footing that ss 43 and 44 of the Juries Act 'are discretionary provisions'. So he did not enter into a question left open by Wu v The Queen,[53] in the context of the different s 22 of the Jury Act 1977 (NSW), whether the discharge of a juror or of the balance of a jury is an exercise of power or the exercise of a discretion; and whether the answer will also be the same.

127 Counsel accepted, for the purpose of his submissions, that a judge's consideration whether to give a direction under s 44(1) of the Juries Act involves consideration whether there is 'a high degree of need' for the discharge of the balance of the jury. That test was held to be appropriate in R v Sharp.[54] It was specifically adopted by the learned judge in the present case.

128 Finally, before going to the positive submissions advanced for the applicant, I should note that no point was sought to be made that in terms the judge gave a direction under s 44(1) before dealing with the discharge application. Understandably so, because in substance her Honour dealt with the question which needed to be decided.

129 Counsel for the applicant submitted that (1) the juror was discharged without there being an adequate evidentiary foundation or enquiry; (2) the judge erred by not requiring the attendance of the doctor, for there was an issue as to the possible bona fides of the forelady; (3) the judge appeared to have given no consideration to the temporary adjournment of the trial; (4) although it would be relevant if a juror would not do his or her best, there was no sufficient evidence that this juror would not do her best; (5) in the exercise of a discretion under s 43 or s 44 of the Juries Act, an accused's right at common law to have the verdict of twelve peers should be considered; (6) it did not follow, because a juror had been discharged, that the trial should continue with only eleven jurors. It was relevant that the applicant was on trial for murder, and that an earlier jury had failed to agree on a verdict; (7) the judge had overweighed the significance of the cost and expense which had been incurred; (8) there had been a miscarriage of justice because (a) the juror was wrongly discharged; (b) the jury was not discharged.

130 Counsel for the Crown submitted that - (1) there were two, but interrelated issues for consideration by the judge - should the juror have been discharged, and should the trial have continued with a jury of eleven; (2) the judge's exercise of discretion on the first issue could not be successfully impugned. Her Honour had ultimately, and justifiably, decided to act upon the certificate. It could be supposed that the doctor would have said, viva voce, what he said in the certificate. Further, the judge's observations of the juror, which were there to be made by others in the courtroom, were relevant. Again, the judge had to consider the problem created by an unhappy juror impacting upon the other jurors. A trial requires the cooperation of the jurors; (3) it could not be said that any fault in the exercise of judge's discretion to discharge the juror had led to a miscarriage of justice. It was speculative that the applicant had lost the chance of a dissentient juror; (4) upon the second issue, the exercise of the discretion could not be successfully impugned. Her Honour had dealt with this issue in its turn, informed by pertinent authorities.

131 Sections 43 and 44 of the Juries Act relevantly provide -

1. A judge may, during a trial, discharge a juror without discharging the whole jury if -

1. (1) Subject to sub-sections (2) and (3), if a juror ... is discharged during a trial, the judge may direct that the trial shall continue with the remaining jurors.

...

(3) A criminal trial cannot continue with less than 10 jurors.

(4) The verdict of the remaining jurors is a sufficient verdict.

132 Upon the assumption that what was involved in each instance was an exercise of discretion, the applicant has failed to show, in my opinion, that such exercise of discretion under either of s 43 or s 44 was infected by House v The King[55] error.

133 As to the exercise of power under s 43, and in response to some of the matters raised by counsel, I make these observations -

(1) The judge was entitled to treat the doctor's report as an accurate assessment of the juror's mental state. The report suggested that the circumstances of the trial, rather than the prospective loss of a pre-paid holiday, was the source of the problem; although even if it was the latter, the end result was no different.

(2) The question was not, as applicant's counsel submitted, whether the juror would or would not do her best. For the purposes of s 43(c), the question was whether she had become ill. The judge evidently accepted the doctor's assessment that the juror's illness was such that she was unable to perform her work as a juror, this having the potential to impact adversely upon one or other party.

(3) The judge was entitled to rely upon her observations of the juror in concluding that the latter was ill to the extent assessed by the doctor. Whatever was said, implicitly, about want of natural justice by counsel at trial, it was not repeated before us.

(4) The question of temporary adjournment of the trial was not raised on 18 December. Further, when on 14 December, in the context of the Christmas season, the judge had raised the prospect of an adjournment, counsel for the applicant had said that he wanted a continuous trial. The course which the trial follows suggests that, had the judge had raised the question of a temporary break on 18 December, it would have spawned another discharge application.

(5) It is not to be supposed that, in discharging the juror, the judge

overlooked the desirability of the trial proceeding with twelve jurors. But the s 43 enquiry is concerned, in the first place, with whether it is demonstrated to the judge's satisfaction that, for one of the reasons set out in paragraphs (a) to (d), a juror is incapacitated from continuing to serve. The significance of the jury being left one person short of twelve is likely to be more significant in a judge deciding whether to give a s 44 direction.

134 I turn to the second issue. The judge's approach to the exercise of her discretion accorded with authority; and, as I said earlier, was not shown to be infected with error. Her Honour focussed upon the speculative matters raised by applicant's counsel, and rejected them on a logical basis. She evidently considered the desirability of the trial continuing with eleven jurors. Although she did not mention it, she could hardly have been unaware that this was a murder trial, and that it was a retrial because the first jury had failed to agree. She did mention, and it was relevant, that the trial was well-advanced. There is no indication, so far as I can see, that the judge overweighed the significance of the cost and expense thus far incurred. In all, her exercise of discretion was unremarkable.

135 There being no demonstrable fault in the judge's exercise of discretion either under s 43 or s 44, the question whether any such defect would have given rise to a miscarriage of justice dose not arise.

136 In my opinion, leave to appeal against conviction should be refused.

137 I agree with Ashley JA that leave to appeal against conviction should be refused, for the reasons he gives.

[1] Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235, 245; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 410-422.

[2] (1948) 76 CLR 501, 511.

[3] (1893) 2 QBD 12,17.

[4] [1914] AC 599, 609-610.

[5] [1918] 1 KB 531, 537-538.

[6] [1950] HCA 25; (1950) 82 CLR 133.

[8] Mc Dermott v The King (1948) 76 CLR 501, 512 (Dixon J).

[9] Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316, 323 (Latham CJ), 333 (Dixon J), 339 (McTiernan J). Doyle CJ very usefully summarised the state of the authorities in R v Pfitzner [1996] SASC 5462; (1996) 66 SASR 161, 171-172.

[10] Ibid 323 (Latham CJ). See also 328 (Starke J), 338 (Dixon J) and 340 (McTiernan J).

[11] (1990) 19 NSWLR 177, 183-4.

[12] Ibid 184 (Principle 3) (emphasis added).

[14] [1963] HCA 19; (1963) 109 CLR 559.

[15] [1996] SASC 5462; (1996) 66 SASR 161, 172-173.

[16] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 503 [334] (Callinan, Heydon and Crennan JJ).

[17] [1987] HCA 50; (1987) 163 CLR 454, 470.

[18] [1963] HCA 19; (1963) 109 CLR 559, 562.

[19] Citation n 16.

[20] See, in particular, C R Williams, An Analysis of Discretionary Rejection in Relation to Confessions [2008] MelbULawRw 10; (2008) 32 MULR 302, 318-319.

[21] [1962] HCA 49; (1962) 108 CLR 591.

[22] [2007] HCA 39; (2007) 231 CLR 396,505 [339].

[23] McDermott v The King (1948) 76 CLR 501, 506-7 (Latham CJ), 513 (Dixon J); R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149-150 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ).

[24] [1998] HCA 1; (1998) 192 CLR 159.

[28] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 402 [3] (Gleeson CJ); 423 [68] (Gummow and Hayne JJ).

[29] [1996] SASC 5462; (1996) 66 SASR 161.

[31] Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316, 336 (Dixon J) citing Best on Evidence, (12th ed, 1922), 460.

[32] [1966] VicRp 3; [1966] VR 9.

[34] R v Parker (1990) 19 NSWLR 177, 183; Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473.

[35] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-494.

[37] [2006] VSCA 277 [45] (Redlich JA).

[38] [2006] VSCA 64, [34]-[35].

[39] [1970] VicRp 104; [1970] VR 840, 846 (Newton J).

[40] [2005] HCA 74; (2005) 80 ALJR 329, 333 [38].

[41] There is one evident mistake in what counsel said, or what he is recorded by the transcript as having said. But the gist of what happened is clear.

[42] See, for instance, MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 (the implications of which I briefly discussed in R v MG (2006) VSCA 264 [5]-[10].

[43] It was common ground before us that the 'LR issue' was run at the first trial, just as it was in the second. The applicant knew with certainty that the Crown would rely upon his identification of the ammunition as LR as part of its case at the second trial. If that could ever have been in doubt, such doubt was put at an end by the prosecutor's oblique but meaningful reference, in his opening address, to 'other matters that will come out during the trial which ... were never in the public arena and could only have been known by the killer'. Further, the LR issue was dealt with by Pringle in his evidence-in-chief. He identified the three types of .22 ammunition, and said that the fatal bullet was of the LR type.

[44] At the first trial, we were told, the applicant said that he 'presumed' the ammunition had been LR.

[45] (1990) 19 NSWLR 677.

[46] (1990) 54 SASR 17.

[47] [2005] HCA 74; (2005) 222 ALR 436.

[48] [2006] VSCA 277; (2006) 15 VR 592.

[49] [2008] VSCA 144.

[50] Counsel for the accused thereby breaching the rule in Browne v Dunn.

[51] (1932) 23 Cr App R 202.

[52] [2005] VSCA 44.

[53] [1999] HCA 52; (1999) 199 CLR 99.

[54] [2005] VSCA 44, [48]-[50] (Vincent JA). His Honour seems to have transposed references to ss 43 and 44, but nothing turns on it.

[55] [1936] HCA 40; (1936) 55 CLR 499, 504-505.